[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]
THE INTERNATIONAL CRIMINAL COURT
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
JULY 25 AND 26, 2000
Serial No. 106-176
Printed for the use of the Committee on International Relations
Available via the World Wide Web: http://www.house.gov/
U.S. GOVERNMENT PRINTING OFFICE
68-483 CC WASHINGTON : 2000
COMMITTEE ON INTERNATIONAL RELATIONS
BENJAMIN A. GILMAN, New York, Chairman
WILLIAM F. GOODLING, Pennsylvania SAM GEJDENSON, Connecticut
JAMES A. LEACH, Iowa TOM LANTOS, California
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
DOUG BEREUTER, Nebraska GARY L. ACKERMAN, New York
CHRISTOPHER H. SMITH, New Jersey ENI F.H. FALEOMAVAEGA, American
DAN BURTON, Indiana Samoa
ELTON GALLEGLY, California MATTHEW G. MARTINEZ, California
ILEANA ROS-LEHTINEN, Florida DONALD M. PAYNE, New Jersey
CASS BALLENGER, North Carolina ROBERT MENENDEZ, New Jersey
DANA ROHRABACHER, California SHERROD BROWN, Ohio
DONALD A. MANZULLO, Illinois CYNTHIA A. McKINNEY, Georgia
EDWARD R. ROYCE, California ALCEE L. HASTINGS, Florida
PETER T. KING, New York PAT DANNER, Missouri
STEVE CHABOT, Ohio EARL F. HILLIARD, Alabama
MARSHALL ``MARK'' SANFORD, South BRAD SHERMAN, California
Carolina ROBERT WEXLER, Florida
MATT SALMON, Arizona STEVEN R. ROTHMAN, New Jersey
AMO HOUGHTON, New York JIM DAVIS, Florida
TOM CAMPBELL, California EARL POMEROY, North Dakota
JOHN M. McHUGH, New York WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas GREGORY W. MEEKS, New York
RICHARD BURR, North Carolina BARBARA LEE, California
PAUL E. GILLMOR, Ohio JOSEPH CROWLEY, New York
GEORGE RADANOVICH, California JOSEPH M. HOEFFEL, Pennsylvania
JOHN COOKSEY, Louisiana
THOMAS G. TANCREDO, Colorado
Richard J. Garon, Chief of Staff
Kathleen Bertelsen Moazed, Democratic Chief of Staff
Stephen G. Rademaker, Chief Counsel
Marilyn C. Owen, Staff Associate
C O N T E N T S
TUESDAY, JULY 25, 2000
Part 1: A Threat to American Military Personnel?
The Honorable John R. Bolton, Esquire, Senior Vice President,
American Enterprise Institute.................................. 3
The Honorable Lawrence S. Eagleburger, Senior Foreign Policy
Advisor, Baker, Donelson, Bearman, and Caldwell................ 7
WEDNESDAY, JULY 26, 2000
Part 2: Recent Developments
The Honorable David J. Scheffer, Ambassador-at-Large for War
Crimes Issues, U.S. Department of State........................ 39
The Honorable Walter Slocombe, Under Secretary of Defense for
Policy, U.S. Department of Defense............................. 43
TUESDAY, JULY 25, 2000
The Honorable Benjamin A. Gilman, a Representative in Congress
from New York and Chairman, Committee on International
John R. Bolton................................................... 64
WEDNESDAY, JULY 26, 2000
The Honorable Benjamin A. Gilman, a Representative in Congress
from New York and Chairman, Committee on International
The Honorable Christopher H. Smith, a Representative in Congress
from New Jersey................................................ 81
The Honorable David J. Scheffer, Ambassador-at-Large for War
Crimes, U.S. Department of State............................... 87
Material submitted for the record:
Prepared statement of Monroe Leigh on behalf of the American Bar
Prepared statement of Lawyers Committee for Human Rights......... 102
THE INTERNATIONAL CRIMINAL COURT: PART 1--A THREAT TO AMERICAN MILITARY
TUESDAY, JULY 25, 2000
House of Representatives,
Committee on International Relations,
The Committee met, pursuant to notice, at 10:16 a.m., in
room 2172, Rayburn House Office Building, Hon. Doug Bereuter
Mr. Bereuter. The Committee will be in order. We will
reconvene and proceed with the hearing scheduled for today.
Today we hold the first of two hearings on the International
Criminal Court. Tomorrow we will hear from two witnesses from
the Clinton Administration, but today we are privileged to have
before us two very distinguished former Executive Branch
Former Secretary of State Lawrence Eagleburger and former
Assistant Secretary of State for International Organization
Affairs John Bolton bring with them a wealth of experience
relevant to the International Criminal Court. They are well-
known to all Members of the Committee and require no
The subject of the International Criminal Court probably is
new to many Members, however, so I will exercise the
prerogative of the Chair to offer a few opening comments,
primarily prepared by Mr. Gilman, who unexpectedly could not be
here this morning.
There are many strongly held opinions about the
International Criminal Court, and many passionate
disagreements. The one thing that virtually everyone agrees on,
however, is that the way this issue has evolved over the last
few years has been nothing short of disastrous from the point
of view of the national interest of the United States. This is
a very important issue that we have before us today. Today we
are well on the way to establishment of an U.N.-led criminal
court which will claim the jurisdiction to prosecute and
imprison many people, including, most important to us, of
course, American servicemembers and other officials of our
government in certain instances, irrespective of whether the
United States ever becomes a party to the Court.
No one likes what has happened in this country with regard
to this issue, least of all the Clinton Administration itself.
Tomorrow the Administration's representative will tell us how
they are trying to undo the damage that seems to be underway.
They will tell us, I am sure, that they are working hard not to
bring the United States into the Court, which is not their
view, but rather to make it safe for the United States to
remain outside the Court.
Supporters of the International Criminal Court claim that
the Administration should have overlooked the flaws in the Rome
Statute creating the Court. The Administration's mistake, in
their view, was its decision in 1998 to walk away from the
Court at the last minute after having done so much to help
launch the project. I am not associating myself with those
Today they urge us to disregard the Court's shortcomings
and formally submit our nation and its officials to the court's
jurisdiction by becoming party to the Rome Statute. Another
group of critics, including the sponsors of the American
Servicemembers' Protection Act of 2000, believe that the
Clinton Administration's mistake was in launching this project
in the first place, given the likelihood that it might spin out
of control, as indeed it seems to have done.
They doubt that the Clinton Administration will ever be
able to reverse the diplomatic defeats it sustained in the Rome
negotiations, and they view the Court as a long-term threat to
our sovereignty and the legal supremacy of the United States
Constitution. We hope that our witnesses will be able to help
us sort through these issues today as we proceed toward the
hearing tomorrow, and clarify for us what can be done at this
date to protect our national interests.
Before introducing the panel very briefly, I would next
turn to recognize our distinguished Ranking Democratic Member,
Mr. Gejdenson, for any opening comments that he might wish to
offer at this point. Mr. Gejdenson.
[The prepared statement of Mr. Gilman appears in the
Mr. Gejdenson. Thank you, Mr. Chairman. Let me say that I
am very happy to have both gentlemen before us but particularly
Mr. Eagleburger, who has served this country so well and had
such a distinguished career through the years. Even though on
rare occasions we had some differences with him on policy, he
is someone who does bring before the Committee and before the
Congress a wealth of knowledge and has really served this
country in an outstanding way, and I really appreciate both
these gentlemen but note in particular a long association with
Really I think every Member on this Committee who has dealt
with him through the years has the greatest respect for him
even where again there may be some disagreements. Thank you,
Mr. Bereuter. Thank you, Mr. Gejdenson. Mr. Secretary, I
have already said that you require no introduction so now I
hesitate to introduce you but I will simply say that since
leaving your very distinguished career with the Department of
State, which culminated in your appointment as Secretary of
State in 1992, you have worked, as the audience should know, as
senior foreign policy advisor to the law firm of Baker,
Donelson, Bearman and Caldwell, where you work with among
others our former colleague from the Senate, the Majority
leader, Howard Baker.
I understand that you would like your colleague at the
table, John Bolton, to testify first. I am sure this comes as
no surprise to John because you worked together for 4 years
during the Bush Administration, and he worked, of course, as
the Assistant Secretary of State for International Operation
Organization Affairs where among other things he was
responsible for our relations with the United Nations.
Mr. Bolton previously had a very distinguished career as a
lawyer in Washington and is now the Senior Vice President of
the American Enterprise Institute. Among other things he has
written extensively about the International Criminal Court. I
think Members have some of his articles in the packets before
them. Mr. Bolton, Members have your prepared remarks as well.
They will without objection be made a part of the record, and
therefore I invite you to summarize them for us and emphasize
the key points. Mr. Bolton, you are recognized.
STATEMENT OF HON. JOHN R. BOLTON, ESQUIRE, SENIOR VICE
PRESIDENT, AMERICAN ENTERPRISE INSTITUTE
Mr. Bolton. Thank you, Mr. Chairman. It is a pleasure to be
here again to testify on the American Servicemembers'
Protection Act of 2000. I appreciate the opportunity to be here
today and to voice my support for that legislation, and I will,
as you request, summarize the statement. I have written on this
subject extensively. What I would like to do today that I think
might be helpful to the Committee is touch on a few of the
important reasons why the International Criminal Court itself
is objectionable, and some things that have happened in the
past few years that I think help demonstrate that and
demonstrate why the proposed legislation will be helpful.
Support for the International Criminal Court concept is
based largely on emotional appeals to an abstract ideal of an
international judicial system, unsupported by any meaningful
evidence, and running contrary to sound principles of
international crisis resolution. Moreover, for some, faith in
the ICC rests largely on an unstated agenda of creating ever-
more comprehensive international structures to bind nation
states in general, and one nation state in particular.
Regrettably, the Clinton Administration's naive support for
the concept of an ICC has left the United States in a worse
position internationally than if we had simply declared our
principled opposition in the first place. I think there are
three broad reasons why the ICC is objectionable. First, is
that all the available empirical evidence we have demonstrates
that the Court and its prosecutor--and I want to come to this
important role of the prosecutor in more detail later in the
testimony. I think we all gloss over talking about ``the
Court'' this and ``the Court'' that when the real element of
concern here is as much the prosecutor as the Court--will not
achieve the stated purpose of these institutions, deterrence of
war crimes and crimes against humanity. This is not likely to
happen for the simple reason that the Court will not and should
not have the authority it needs to be an effective deterrent.
Indeed, there is not a shred of evidence that advocates of
the ICC have presented to support their deterrence theories.
One advocate said at the drafting of the Rome Statute that
``the certainty of punishment can be a powerful deterrent.'' I
think that statement is correct. Unfortunately, it doesn't have
anything to do with the International Criminal Court. In many
respects, the ICC's advocates fundamentally confuse the
appropriate roles of political and economic power, diplomatic
efforts, military force, and legal procedures.
No one disputes that the barbarous actions under discussion
are unacceptable to civilized peoples. The real issue is how
and when to deal with these acts, and this is not simply or
even primarily a legal exercise. The ICC's advocates make a
fundamental error by trying to transform matters of
international power into matters of law. Misunderstanding the
appropriate roles of force, diplomacy and power in the world is
not just bad analysis, but bad and potentially dangerous policy
for the United States.
Recent history is ripe with examples where strong military
force or the threat of force failed to deter aggression or
gross abuses of human rights. Why should we believe that
bewigged judges in the Hague will be able to prevent what cold
steel has failed to prevent? Deterrence ultimately rests on
effectiveness and the ICC is unlikely to be that.
We have one excellent example that has just taken place in
the course of the air campaign over Yugoslavia where the
Milosevic regime already faced an existing ad hoc tribunal
dealing with former Yugoslavia. And even in the face of an
existing tribunal and indeed even with precision guided weapons
falling on the regime's head in Belgrade it still stepped up
ethnic cleansing in Kosovo. Even viewed in the light most
favorable to the Court, I don't think that its supporters have
adduced any evidence that the hard men of history like Pol Pot
and Saddam Hussein are going to be deterred by this Court.
Holding out the prospect of ICC deterrence to those who are
already weak and vulnerable is simply fanciful.
Now, Mr. Chairman, in my testimony I go through at some
length a recent report about the Rwanda and Yugoslav tribunal
showing many of the defects that they already have. These two
tribunals I think are at least some indication of the
difficulties a permanent ICC would have. And if you were to
look at a military analogy, using these two courts as kind of
prototypes of a new weapon system that, to be frank about it,
had some problems, I think most reasonable people would say
``let us order a couple more prototypes before we make a final
Creating the ICC based on the Rwanda and Yugoslav tribunals
is a little bit like saying, ``Well, there are some problems
with these prototypes but why don't we order 1,000 copies of
them?'' The Ackerman Report also points out that these are not
inexpensive vehicles. The Yugoslav Tribunal's budget last year
was $94 million and the Rwanda Tribunal's budget was $68.5
million, which are not small sums even for the United States.
Second, Mr. Chairman, another broad problem with the
International Criminal Court approach is the idea that the
international search for justice is always and everywhere
consistent with the attainable political resolution of serious
political and military disputes, whether between states or
within states. In the real world, as opposed to theory, justice
and reconciliation may be consistent or they may not be and the
idea of prosecution uberalles [ph] is something that I think we
undertake with great reservation.
I think the example of the South African Truth and
Reconciliation Commission is an alternative way to look at past
abuses by prior governments. It is something that is important,
and here we have examples in the real world where we have seen
the potential adverse effects of the prosecutorial approach
embodied in the International Criminal Court.
I discuss at some length in the testimony the Pinochet
matter in Chile. And let me just take that very quickly as an
example. I have no defense whatever for the allegations made
against General Pinochet, but I think it is critical to
understand that in a country like Chile that is today
indisputably a democracy, the resolution of the Pinochet matter
is for the Chilean people. It is for their elected government.
It is an issue that still causes great passion in Chile in
political debate, and it is exactly the wrong thing to do as
happened over the past few years for a loose cannon Spanish
magistrate to attempt a judicial kidnapping of Pinochet in the
United Kingdom on the grounds that somehow this matter should
be resolved in Spain rather than in Chile.
The example of the Spanish magistrate and his uncontrolled,
indeed unaccountable exercise of power, should bring to mind
exactly the concerns that many of us have about the prosecutor
in the proposed International Criminal Court. But, third, Mr.
Chairman, and I think most importantly, and this is where the
proposed legislation I think is especially important, there are
tangible American interests at risk here. I think that the
ICC's most likely future will be weak and ineffective and
eventually ignored, but there is another possibility: That the
Court and the prosecutor will be strong and effective.
In that case, the United States may face a much more
serious danger to our interests, if not immediately then in the
long run, and this is where the power of the prosecutor becomes
But there are other aspects to the treaty that are
objectionable as well. For example, article 120 of the Rome
Statute says that there can be no reservations to the treaty.
Mr. Chairman, if there were nothing else objectionable about
this treaty, that alone would be a reason to reject it. The
notion that the Senate in its consideration can't make
appropriate reservations is an unacceptable precedent for the
Second, and even more serious, this treaty purports to
cover the nationals of non-signatories. If a country like the
United States doesn't sign the treaty, citizens of the United
States may nonetheless be subject to the jurisdiction of the
Court if they commit prohibited behavior on the territory of a
country that is a signatory.
Now I think it is unacceptable; unacceptable, not
compromisable; unacceptable, for the United States to be bound
by a treaty that it is not a party to. The Administration, and
I am sure you will hear this tomorrow, has a number of fixes
they are going to try and make to the provisions of the rules
of the Court and the relationship agreement that needs to be
negotiated between the United Nations and the ICC itself that
are not really going to address that fundamental problem. There
are small fixes that may or may not be made to the problem
created by article 98 of the Rome Statute, but nothing
addresses--nothing can address--the fundamental and to me
dispositive philosophical objection that this treaty purports
to bind the United States even if it is not a signatory.
Now let us be clear here. Our main concern under the Rome
Statute should not be that the prosecutor will indict the
occasional American soldier who contrary to his or her training
and doctrine allegedly commits a war crime. Our main concern
should be for the President, the Cabinet officers, and the
National Security Council and other senior leaders responsible
for our defense and foreign policy. They are the real potential
targets of the ICC's politically unaccountable prosecutor. This
statute is incredibly vague, and I give some examples in the
testimony, of language that has a general moral proposition we
could probably all agree with, but which has never been applied
in a criminal context and which if it were attempted to be
written into American criminal law, I have every confidence the
Supreme Court would declare void for vagueness.
The pattern of discussions we have had over the last 2
years about these vague provisions and about a range of
objections to the Court typically are answered by advocates of
the Court saying, ``Well, that is not going to happen, that is
not going to happen. It is not a concern.'' These are concerns.
These are things that have already begun to take place. And I
want to give a couple of examples but I think one other thing
to keep in mind: Whether I am right or wrong the ultimate
decision about the Court's authority is by the Court itself.
Article 119 of the Rome Statute provides any dispute concerning
the judicial functions of the Court shall be settled by the
decision of the Court, and that means that once they have
decided it is effectively out of our hands.
Now let me just take two quick examples and then I want to
conclude, Mr. Chairman. One of the things that is still under
discussion is the definition for the crime of aggression. This
is something of particular interest and particular risk to us.
Very recently the Secretary General of the United Nations, Kofi
Annan, expressed this view during the bombing campaign over
former Yugoslavia. He said, ``Unless the Security Council is
restored to its pre-eminent position as the sole source of
legitimacy on the use of force, we are on a dangerous path to
anarchy.'' Let me just repeat the key phrase there. The
Security Council as ``the sole source of legitimacy on the use
That is to say that if NATO in the case of Yugoslavia, or
the United States unilaterally, undertook the use of force
without Security Council authorization, under his view it would
be illegal and therefore would potentially subject the United
States and its top leaders to prosecution by the prosecutor.
This is not hypothetical. We have already seen it happen in the
case of the international criminal tribunal for Yugoslavia
where a complaint was filed against top NATO leaders by, what
else, a group of law professors arguing that several aspects of
the NATO air campaign constituted war crimes.
Now the prosecutor, Mrs. Del Ponte, rejected the assertion
that NATO's actions amounted to war crimes, but by taking under
advisement a complaint about NATO's leadership and by ruling it
insufficient for lack of intent, which is clearly one of the
hardest elements to prove, she made it pretty clear that she
thought she had jurisdiction. So I think a lot of Members of
Congress were quite surprised that the tribunal that was
supposedly set up to try Balkan war criminals had actually been
investigating NATO. The conclusion that Mrs. Del Ponte made
didn't go to the overall question of the air war's legality,
because she wasn't presented with it.
There is another example that has also occurred recently
that brings the future very close to home. A group of families
of Argentine sailors killed in the Falklands conflict in the
early 1980's in the British sinking of the Argentine warship
General Belgrano filed a suit for damages in the European Court
of Human Rights, arguing that the British sinking of the
Belgrano outside of the self-declared 200-mile exclusion zone
around the Falklands violated the Hague Convention of 1907.
To begin with but it is important that the European Court
of Human Rights has effectively taken jurisdiction of the case.
They have remanded it for certain proceedings, but as I
understand the press reports they have concluded that they do
have jurisdiction. This is an argument that an act of war, not
against civilians at all, against a warship amounted to a war
crime by the British government. And while this is a civil suit
for damages, it is only a very short step for somebody to
conclude that the attack on the Belgrano was the fit subject
for the prosecutor of something like the International Criminal
These risks of prosecution to top government decisionmakers
in critical periods are far from hypothetical, Mr. Chairman. It
is the reality we face. And that is the real risk of the
prosecutor. He is not political accountable. He is not subject
to adequate oversight. We in this country have had recent and
very painful experience with the concept of an independent
counsel. And just in the past few years on a bipartisan basis
the independent counsel has been laid to its well-deserved
It just boggles the mind that after we have gone through
and experienced what an unaccountable prosecutor can do, we are
about to, or at least some suggest, wreaking this concept on
the rest of the world. In conclusion, Mr. Speaker, I believe
that our American policy toward the International Criminal
Court should be a policy of ``three noes:'' No financial
support, directly or indirectly, no collaboration, and no
further negotiation with other governments to try and improve
This institution is objectionable on principal. We should
oppose it on principal, and I think the American
Servicemembers' Protection Act of 2000 is a well-crafted
instrument to help in our diplomatic efforts. Thank you very
much, Mr. Chairman.
[The prepared statement of Mr. Bolton appears in the
Mr. Bereuter. Mr. Bolton, thank you very much. Secretary
Eagleburger, again welcome. You may proceed as you wish.
STATEMENT OF HON. LAWRENCE S. EAGLEBURGER, SENIOR FOREIGN
POLICY ADVISOR, BAKER, DONELSON, BEARMAN AND CALDWELL
Mr. Eagleburger. Thank you, Mr. Chairman. It is a pleasure
to be here. Congressman Gejdenson's remarks this morning
brought tears to my eyes. I came close to weeping. It is the
first time since we have been associated for so many years
where he said anything nice about me and I want you to know
that I will take that and treasure it forever, Congressman.
Mr. Gejdenson. If the staff has time, I am sure we can find
some other nice things I have said, and I will have them go
back and look at the record.
Mr. Eagleburger. It is also good to be here and to see two
people in the art work here that I have worked with and have
great respect for. That is Dottie Fasell and Clem Zablocky, who
were great chairmen and good friends and we miss them both, I
am sure. I can, I hope, be brief. First of all, I would like to
associate myself with Mr. Bolton's testimony but I want to go
on to a couple of other items that he didn't really touch, I
First of all, I spent a fair amount of time reading over
the position of the Administration on this particular bill and
it occurred to me very quickly that under normal circumstances
those were letters I would have signed myself when I was in the
State Department except I don't think so in this case and I
want to try to explain why. There is a fundamental here that
really bothers me and that is that I have no argument
whatsoever with the United Nations and its efficacy and the
need to establish international organizations that can deal
with difficult problems.
I, however, have a very serious problem if we go very far
in conceding that the United Nations should be making
international law. This isn't a democracy, the United Nations
These are a number of sovereign states, some of whom the
governments were elected by democratic means and a great many
more who think other than democratic and whose concerns about
human rights in terms of the way they demonstrate their own
activities is substantially different from the mouthings they
now put forward in the United Nations about human rights and so
So I think we have to be very, very careful when we are
prepared to concede to that international institution without a
great deal of caution the right to make international law and,
for example, and Mr. Bolton referred to it, until we return the
Security Council to its sole responsibility, I don't know that
the Security Council ever was solely responsible for the use of
It is certainly hopefully something that we can continue to
turn to but I would suggest to you that if there may well be
times where in the security interests of the United States
there is a need to act whether the United Nations as such is
going to be willing to agree to it or not. Most of the time I
would hope that is not the case but I can assure you that if we
are not careful we will bind our own ability to make decisions
on when we should be acting in our security interests in ways
that we, I think, unwisely will learn later that we should not
My point, gentlemen, ladies, is that I agree with Mr.
Bolton's three noes. I do not see how it is possible to reform
this institution through negotiations on the part of the United
States, who with the best will in the world may be trying to
remove the differences and the difficulties but the fact of the
matter is the fundamental difficulty won't be done away with.
That Court is in my judgment a creation that is both
illegitimate and illogical.
I know that is going to upset most of my more liberal
friends but the fact of the matter is that particular Court,
particularly since the United States has said it will not
participate, that particular Court in my judgment should bear
no real authority whatsoever and we have to make it clear that
that is our view of it. Now why do I say that aside from the
fact I think that we have dangerously over time slipped into
this concept of making international law by global consensus,
if you will, and it is a consensus that is in part made by
countries that have no interest in the very things that we are
most interested in trying to protect.
And I am worried that the very things that we agree through
a Court like this should be--international law will some day
come back and bite us where we shouldn't be bitten. And my
point here really to summarize, and I have said this both in
speeches and in articles for the last 2 or 3 years, I think we
Americans need to understand that we are going into a very
uncertain century and anyone who thinks that because the Cold
War is over the 21st century is going to be a relaxed period of
time, I think is fooling himself.
The Bosnias of this world, the problems in what used to be
the Soviet Union, I could go through around the world and
suggest to you any number of potential areas of instability, my
point being I think those instabilities are likely to increase
rather than decrease. And I would say to you that the next
step, whether we Americans like it or not, unless the United
States is prepared in the next decades to be seriously
interested in trying to maintain global stability where it
should be maintained that we are going to find ourselves by the
middle of the century having repeated too many of the mistakes
we made in the 20th century.
What does that mean? That means hopefully that the United
States with wisdom and intelligence will be prepared to be
involved in trying to maintain or correct--maintain global
stability or correct injustices where they occur, not that we
are the world's policemen but when an issue becomes so
important to the United States that we will be prepared to act
whether others will or not.
And Congressman Lantos, for example, will remember just to
try to give you an example, that in the days when I was in the
State Department we used to argue fairly strenuously about
whether the United States should or should not do anything in
Yugoslavia with me taking the position and the Administration
taking the position no. But quite rightly Congressman Lantos
and others felt very strongly that we should be acting.
My point here is that it is precisely a question for the
United States to decide, not necessarily with the consensus of
everybody else. Now in the end when we went into Yugoslavia,
yes, we had an agreement, but I would suggest to Congressman
Lantos that his feeling as it was expressed to me at least in
those years would have been if necessary we had--this is such a
crucial issue that we should act on our own if we have to.
I am not trying to put words in your mouth, Congressman,
but I am saying the discussions we had very clearly led me to
believe that you felt that this was such a humanitarian
disgrace that something had to be done. I felt it was a
humanitarian disgrace. I did not feel the United States was in
a position to act. That is where the argument came. My point
being we were arguing this issue on the basis of what was in
And I think we must continue to remind the rest of the
world that we are going to continue to make our decisions on
the basis of our best interests and that if, for example, we
decide we want to act in a certain area, we should not have our
GIs subject to the jurisdiction of this Court if somebody wants
to make a point against the United States and its actions. And
I would suggest to you, and then I will close, I would suggest
to you that one of the problems we are going to have in these
coming years is that in fact we are going to find more and more
of the rest of the world that resents the fact that we are what
we are, resents the fact that we are prepared to do what we can
to defend human rights interests and act against war crimes and
are going to find ways, if they can, to bring against us the
same judgments that we are supposedly making against others.
And we will, before this is over, before this century is
out, and long before this century is out if we continue along
this path, we will find ourselves being charged with war crimes
by those who have no business in the business of charging war
crimes because they themselves may well be war criminals or
they will be neutrals who resent the power and influence of the
United States and will be prepared to act against us if they
We are walking into, in my judgment, by even doing anything
more with this treaty, we are walking into a potential real
mess. I hate to say it because the United States should not
always stand against these kinds of issues. But, for example,
in the mining treaty we had a serious responsibility to our
troops in Korea and the Administration did the right thing by
saying, no, we will not join the treaty. We have
responsibilities as the United States that are not faced by
other countries and as a consequence of that we have to act
with all respect to the rest of the world. We on occasion have
to act like we recognize that we are different, that our
responsibilities are greater, and that the decisions we take
are more immediately influential in terms of whether global
stability is maintained or not.
I don't like to dwell on it so much because the rest of the
world is more and more, I think, resentful of the fact that we
are what we are but without us and an ability to act when we
feel we need to, the world is going to be a poorer place, not a
better place. Thank you, Mr. Chairman.
Mr. Bereuter. Thank you, Mr. Secretary. Without objection,
all Members' opening statements, if any, with extraneous
material will be made a part of the record. Hearing no
objection, that will be the order. We will now proceed under
the 5-minute rule, and I will recognize Members in order as
they were here at the start of the hearing.
Gentlemen, you make some very compelling points in varying
details and degrees of specificity about the problems inherent
in the Rome Statute creating the International Criminal Court.
Does it follow from what you said that any International
Criminal Court would pose very serious problems to the United
States or is it just this International Criminal Court created
under this treaty that would create those problems?
To put it another way, would it be possible to have a
permanent international tribunal or tribunals capable of
pursuing serious war criminals that the United States could
Mr. Eagleburger. Mr. Chairman, Mr. Bolton is the expert,
the lawyer, on this. I would simply say to you certainly this
treaty ought to be junked, ignored, whatever the point is. I
suppose carefully drawn you could establish a treaty that
would--and it would have some limitations, would have to have
some limitations to it but that could at least move in the
direction of being able to deal with war crimes.
I think we would have to be very careful to make sure that
it didn't limit our ability to act if we felt it necessary to
act but I can conceive in general of such treaty. It seems to
me Mr. Bolton is much more likely to be able to give you a
Mr. Bolton. Let me take a shot at it, Mr. Chairman. I
thought about this a good deal and I don't think there is a way
to create an International Criminal Court designed to do what
this is doing consistent with our Constitution. And the basic
problem is that the Court and the prosecutor, and I want to
stress again that what we have got here is not simply a bunch
of people in black robes dispensing impartial justice. In the
institution of the prosecutor the Rome Statute creates a very
powerful source of executive authority and takes it and just
sort of puts it out there in the international context.
Under our constitutional system, we are willing to accept
prosecutors having the enormous authority they do because
ultimately they are politically accountable. The Supreme Court
has said, for example, that the Attorney General is the hand of
the President in fulfilling the President's constitutional
obligation to take care that the laws be faithfully executed
and the authority of the President that flows from being
elected by the citizens goes through the Attorney General down
to U.S. Attorneys down to the lowest Assistant U.S. Attorney in
any office around the country.
That is a kind of accountability that we find important and
in our system we have another kind of accountability. I just
speak here as an alumnus of the Justice Department having
testified before other committees in this House and on the
other side. Congress exercises very intense scrutiny over the
policies and practices of prosecutors at the Federal level.
That is the kind of accountability and democratic legitimacy
within our system that in the main we accept. But the
prosecutor of the International Criminal Court doesn't report
to any elected executive authority. He is not supervised by
anybody except the Court itself.
Now people say in Europe they do that all the time, and my
response is that is one reason they are Europeans and we are
not. We formulated a doctrine of separation of powers that said
we are going to split the executive power, the power of
prosecution, from the judicial power from the courts. That is
fundamentally mixed together in this system. So, in effect,
what the Rome Statute does is create centers of power out there
in the international environment not subject to acceptable, at
least in my view, constitutional or democratic limitations and
gives them authority without accountability or oversight.
I just find that unacceptable and for free people to find
law being made in ways by other people are not subject to their
ability to elect them or throw them out of office. Now, you
know, Mr. Chairman, other governments have recognized this
point and some governments are actually amending their
constitutions to make sure that their constitutions are
consistent with the Rome Statute.
And I think because they correctly recognize that if the
Court actually came into being effectively it would have
authority over and above their constitution. I find that
unacceptable for the United States as well. We have an
acceptable democratic procedure here to amend our Constitution.
People may like the results, may disagree on substance, but we
got a system that works. And I think subordinating it to an
ill-defined, unaccountable system larger than that is a risk
that we should not take.
Mr. Bereuter. Thank you, Mr. Bolton. My time is almost up.
I would advise Members we are probably going to have time for a
second round so I will now call on the gentleman from
Connecticut, Mr. Gejdenson, for his 5 minutes.
Mr. Gejdenson. Thank you, Mr. Chairman. I think we clearly
agree that this generation of political leaders shouldn't be
amending the Constitution. They probably wouldn't improve on
what Jefferson and the others did originally. But it seems to
me you put before us the choice, it is either war or law, and I
think there has got to be something between there. And I guess,
Mr. Bolton, you come down that we should deal with this as the
United States dealt with Mr. Noriega and Israel dealt with Mr.
Eichman, that we kind of go in and grab the people that we
think should be put on trial and then we put together a system
here and try them.
Mr. Bolton. I think there are a variety of different ways
in which this can be handled, and I can give you some specific
example concretely today. In the case, for example, of
Indonesia, there is a real question what to do with Indonesian
military officers who are alleged to have committed war crimes
in East Timor before, during and after the U.N. referendum. Now
there is one proposal that says let us create another ad hoc
tribunal, which would be necessary because the ICC doesn't
Let us create another international tribunal to try these
allegations against the Indonesian military. The other
alternative though is to have the Indonesian government try the
Indonesian officers but I think this is----
Mr. Gejdenson. I only have 5 minutes until I have to run up
to another meeting. My problem is that the legislation goes
beyond just concerns which we all have about this and I think
there are reasonable concerns out here. But it prevents us from
providing information in the case of a prosecution. The Court
gets set up with or without us. These countries go and they get
to whatever the magic number is, 60. They have 14 already. The
Court is in operation.
We have evidence that would put Milosevic away. What this
legislation says is we can't give it to them. An American is
prosecuted in the Court. It exists with or without us. We have
evidence that is exculpatory. This legislation says you can't
hand that evidence over. And for God's sake, if the Court is
going to happen with or without us doesn't it make sense for
the Administration to engage in at least a continuing dialogue,
where let us assume it is going to be far from perfect.
Let us even assume it is going to be bad. Isn't it a little
mindless to say we can't let those people over in the
Administration even talk about improving it. I think it
undermines us internationally. It undermines us in practice
because you will end up with something that is worse without
our input. At the end of the day I may end up in the same place
that you are, Mr. Eagleburger, and say, no, this doesn't work
because of our singular role in the world. We need to not
accept this at the moment.
But how can you tell the Administration don't try to make
it better, don't try to help prosecute a criminal, and don't
try to defend an American who is being falsely accused. Mr.
Eagleburger, I know you can answer this in a minute and 50
Mr. Eagleburger. I can answer it in 10 seconds, Mr.
Gejdenson. First of all, let me make the point with regard to
Noriega and Panama and so forth. The ultimate choice for this
democracy, the ultimate answer to the question of whether we do
that or don't do it and how we answer for it rests in the hands
of you people right here and the American people. When we do
the Panama sort of thing it seems to me that is--because we are
what we are and we are different than 99 percent of the rest of
the world our political leadership is answerable to you and to
the American people.
That is to me a critical difference here. But, second, and
the point that you asked about, why can't we continue to try to
make this thing better or at least not so bad, and my only
answer to you, Sam, excuse me, Mr. Chairman--Mr. Congressman,
Mr. Gejdenson, whatever the proper term is--I haven't got you
Chairman yet, not for a while.
Mr. Gejdenson. It is hopefully prophetic but go ahead.
Mr. Eagleburger. But anyway on that last point the issue it
seems to me now is so clear that no matter what we do to try to
make that treaty less bad in the end it is going to be so bad
anyway that we are probably far better off right now to say we
want nothing more to do with this and fellows, you better
understand we are not going to accept its applicability to
anyone that is a United States citizen.
I admit to you, you can play around with it and try to
change it if you can. Like, for example, trying to give
information about whomever when some Court asks for it, and I
don't mind that issue being dealt with if you can but I would
say that it is still in my judgment far better. It says here I
must stop and I will in 10 seconds. It is far better that we
just simply say we wash our hands of this. There is no way it
is going to turn out well under any circumstances and not
playing around with it at all implies that we are prepared to
deal with it.
Mr. Bereuter. Thank you. The time of the gentleman has
expired. Here in order at the beginning of the hearing, and
then we will alternate across the aisle, Mr. Lantos, Mr.
Hastings, Mr. Delahunt. The gentleman from California, Mr.
Lantos, is recognized.
Mr. Lantos. Thank you very much, Mr. Chairman. Let me say
at the risk of embarrassing Secretary Eagleburger that in my 20
years in this body I have never learned as much from anybody as
I have learned from you nor have I respected anybody more than
I have respected you. And since we are making these public
concessions at least on my part, let me say I have never had
more affection for anybody than you.
Mr. Eagleburger. Mr. Chairman, could I ask if I could leave
now? It can't get any better.
Mr. Lantos. It is going to get better.
Mr. Bereuter. Sorry, Mr. Eagleburger.
Mr. Lantos. Let me say I am very pleased to see Mr. Bolton.
I appreciate his testimony. I would like to take a different
tact from my two friends thus far and I would like to ask the
question, the basic question, of why we are dealing with this
legislation, which is entitled the American Servicemembers'
Protection Act. I tell you we are dealing with the legislation
for very simple political reasons. In a few months we will be
voting and our colleagues on the other side of the aisle would
like some of us to vote against protecting American servicemen.
This is a wonderful campaign commercial. It has great
appeal. The only other thing that I could think would have
greater appeal would be the American Mothers' Protection Act,
and knowing the creativity on the other side within a week I
expect the Majority Whip or somebody introducing that
legislation. We will have hearings on it. It will be an
atrocious piece of legislation and some of us will be compelled
to vote against it.
I am always interested, Mr. Chairman, in dealing with the
agenda but I am also interested in dealing with the hidden
agenda, and I am anxious at the outset to bring out the hidden
agenda. The hidden agenda is to make those of us who in general
have some sympathy for an International Criminal Court
recognizing all of the reservations that our two guests have
raised very properly to have us get on the record that we are
against protecting American servicemen. That is the purpose of
Now let me deal with some of the issues you gentlemen have
raised. Secretary Eagleburger, I fully agree with you that you
and I are in total agreement on the issue that occasionally
when necessary the United States must go it alone. This is in
all national interests and it is in the global national
interest and with respect to Yugoslavia while my preference was
early action by NATO, I would have preferred early action by us
to no action whatsoever. You are correct.
Now this particular proposal does have some flaws but since
you have highlighted some which are present let me, if I may,
point to cases where with all due respect you may have
contradicted yourselves. On November 16 appearing on Night
Line, Secretary Eagleburger, this is what you said.
I am not particularly clear on all of the arguments as to
why we haven't joined International Criminal Court. My personal
view is that those kinds of questions ought to be handled and
that we should certainly enter into this Court precisely to
begin to get at the kinds of problems in an orderly way that
the Pinochet case demonstrates with regard to the need to do
something about it but it certainly is disorderly at this
I am not suggesting that there is anything wrong in
changing your position. I have changed my position on many
issues over the years as I have become wiser and more
knowledgeable, and this is true of others. But I think it is
important to realize that just 2 years ago your general
position was that we ought to join the International Criminal
Court, and you probably said that, Mr. Secretary, because while
your point is very well taken that the majority of the members
of the United Nations are dictatorial countries and how can we
have those people serve on the criminal court when the
leadership was not elected as ours was.
May I remind all of us that at Nuremberg Stalin's
representative participated as a full-fledged member of the
Nuremberg trials. I welcomed Stalin's representative because
certainly the Soviet Union earned the right to participate in a
trial that dealt with Nazi criminals. This is not an ideal
state of affairs and all of us, both you and all of us on the
panel would like to see a world made up of only democratic
countries but clearly that is not the case.
And the fact that occasionally non-democratic countries may
play a role and in the case of the Nuremberg trials played a
very pivotal role, a very pivotal role, is in the nature of
this very imperfect world we live in. Now I do believe--my time
is up. May I just make one more point, Mr. Chairman. It is a
self-serving point. I have legislation pending calling for the
United States to rejoin UNESCO. Some years back properly we
left UNESCO because we had some very severe reservations about
UNESCO. I shared those reservations and I support the
government's decision to pull out of UNESCO.
Most of the problems, the most serious ones with UNESCO,
have now been reasonably solved. There is still no willingness
on the part of this Congress to rejoin UNESCO for reasons that
escape me, and I think that there is a danger as we exclude
ourselves from participating in international organizations
which are admittedly flawed and imperfect and subject to
improvement that we will create sort of a new kind of
isolationism that rejects United States participation in
legitimate international ventures which given the nature of the
world are admittedly flawed. I would be grateful if both of you
Mr. Bereuter. The time of the gentleman has expired.
Secretary Eagleburger, do you specifically have a question?
Mr. Eagleburger. Yes, and I will be quick. Congressman
Lantos, you are quite right on the television comment that this
was focused then on specifically the Pinochet case 2 years ago.
I feel so strongly and have all along that it was an absolute
corruption of proper international law to have acted against
Pinochet the way they did. And my point then was this is a
disorderly system and what we are seeing now with regard to
General Pinochet continue if we are not careful and perhaps
with this Court we can regularize these things.
Now 2 years later I am going to tell you I don't think--you
know, I don't think the Court can do that. I do think that the
Pinochet case does demonstrate the need for trying to find some
way to regularize some way to incorporate into international
law what I would consider to be appropriate means of dealing
with the Pinochet problem and my basic point would be the
Pinochet problem should have rested with the Chilean government
and not much of anybody else.
So I agree I said what I said. I think it was under
different circumstances. Let me simply conclude again, Mr.
Lantos, I agree with you the United States should not exclude
itself under almost any circumstances. We are the world's
leader and we better act like leaders. I don't deny that at
I will, however, say that in this specific case as you look
at the consequences and more important, frankly, sir, as you
look at the process that has led to this kind of a decision to
create this Court, which I find it so anti-democratic in its
own way, maybe that is the wrong term, but at least I find it
so much threatening in the last analysis, the very things that
we hold dearest within the Constitution and the dangers that
those will over time slide away that I just don't think this is
a particular case for continuing to participate, but under
normal circumstances I agree with you completely.
Mr. Bereuter. I thank the gentleman.
Mr. Bolton. Could I just make one very brief comment?
Mr. Bereuter. Mr. Bolton.
Mr. Bolton. I think it goes beyond the inappropriateness of
non-democracies participating. You know, other defects of this
Court include the absence of jury trial, the absence of a right
of confrontation of cross-examination and at least in the minds
of some real limitation on the protection against self-
incrimination. And debating with law professors over the past
couple of years about that, I have pointed those things out and
the response of many have been, ``Well, but in European systems
of justice, various European systems, they don't have these
provisions, and, you know, you got to have some European
provisions and some American provisions.''
I would have to say, Mr. Lantos, I don't accept that. I
view this as so flawed in so many respects, the idea that a
jury trial is not guaranteed or that a defendant doesn't have a
right of confrontation of witnesses who are testifying against
him, that violates fundamental precepts of our own justice
system. I just think that it may be acceptable to Europeans,
but it should not be acceptable to us.
Mr. Bereuter. The gentleman from Massachusetts, Mr.
Delahunt, is recognized.
Mr. Delahunt. Thank you, Mr. Chairman. You would concede,
however, Mr. Bolton, that the European system, while it isn't
our system, at least thrives in a democratic society.
Mr. Bolton. Sure. And the question is whether using aspects
of their system that we have rejected for our own domestic
purposes should be acceptable in the context of an
International Criminal Court. And I think the absence of a
separation of powers is----
Mr. Delahunt. I share that concern. I find disturbing
aspects of the European system but I don't think we just simply
want to discredit European democracies and leave the impression
that the legal system is undemocratic. Clearly, it is not. I
mean you are right about a trial by jury and right of cross-
examination, etc., but I think Secretary Eagleburger--I think
it maybe was you, Mr. Bolton, that just made the statement that
we should act like leaders.
I understand your concerns about this particular treaty but
to get back to the legislation that has been submitted by the
Majority Whip. I mean to insist that we do not prohibit us from
collaborating in an investigation which would lead to justice
as we could define it. OK. I conclude that you believe that the
treaty itself, the ICC, is so flawed that we should just kill
Am I wrong to infer that you see the legislation as a means
to accomplish that because there are so many aspects to the
legislation itself that are truly absurd such as lack of
collaboration in an effort to bring Milosevic or someone to--
particularly if we possess information that can accomplish that
particular goal, which we could agree to. I mean aren't there
other ways to kill it rather than to do something that is
hostile to what I think would be overwhelming, unanimous
agreement about a particular pattern of heinous conduct?
Mr. Bolton. Mr. Delahunt, let me address both the general
and the specific, if I may. First, I think the legislation
could be extremely useful to either this Administration or a
subsequent Administration in convincing other governments not
to ratify the ICC itself.
Mr. Delahunt. Then you have answered my question. I think
what you are saying is this is a message. We will take such an
extreme stand that we want to kill it. What I think is, what I
would suggest is I think a more honest and for us a more
correct position in terms of what we stand for, OK, is to
accomplish that goal through other means.
Mr. Bolton. May I just continue because I think it is
important. There are other aspects of this, whether the Court
comes into existence or not, that in this legislation that
gives even the Clinton Administration leverage in its
negotiations with other governments on such things as status of
forces agreements. You know, I am a creature of the executive
branch; in a perfect world, I would have hoped that we wouldn't
be in the fix we are in right now to begin with if the
Administration had not led us into this swamp.
But in the absence of that, I think it does help and does
send a clear signal to other governments that really think the
Administration is still trying to find a way to sign the Rome
Statute, that this statement by Congress----
Mr. Delahunt. I think I understand the position. In terms
of deterrence, I think you indicated that there is no data in
terms of deterrence. I served 20 years as an elected prosecutor
myself up in the Boston area. I have always had a problem with
the concept of general deterrence. We always hear about sending
the message of deterrence. Sometimes there is no one listening
to the message.
This is simply going to happen no matter how draconian a
particular sanction might be because there is nobody listening
but--my experience always led me to conclude that the more
sophisticated and the more educated do listen.
Mr. Bolton. I didn't mean to say I don't believe in
deterrence. What I am saying is this Court will not fulfill
this function in much the same way that the International Court
of Justice, which handles disputes between states, has fallen
Mr. Delahunt. Right, but I guess we have a disagreement
there because it is difficult to survey what transpires in
individual minds and how people reach decisions. But over an
extended period of time, and I am not referring specifically to
this Court, but if there were consistency decisions that were
made might not well have been made if there were a deterrent.
Mr. Eagleburger. Basically, I am going to agree with you on
the issue of deterrence. I think it does make a difference. I
would only suggest to you that what I hope will deter the next
Milosevic is not some Court but the fact that he is still
cleaning up Belgrade and rebuilding bridges and so forth.
Mr. Delahunt. Could I disagree with you. Let me tell you
something. My experience has been that people like Milosevic
are not necessarily concerned about cleaning up Belgrade. They
are concerned about their own back.
Mr. Eagleburger. No, you are quite right about Milosevic.
All I am saying is the next time around, the next potential
Milosevic, the fact that he caught a good bit of hell
afterward, may be something of a deterrent----
Mr. Delahunt. Let me again respectfully disagree. I have to
tell you that my experience dealing with very sophisticated
criminals is that they are only concerned about themselves.
Mr. Eagleburger. I am not arguing that. I guess if I pin it
quite so directly to Milosevic I can't make the argument. I am
saying, however, that there are these pipsqueak leaders out
here that if they see their country about to be very badly
damaged may decide not to do something. However, whether that
is an argument or not, I think we need to keep one thing very
clearly in mind. Deterrent or not, when it comes to dealing
with war crimes and trying to punish people for them, this will
work perhaps with the little countries, but let me tell you, do
you conceive possibly of bringing President Putin to the
international court because of what he is doing in Chechnya,
for example? Of course not.
One of the things we need to keep in mind here is on the
little wars the little countries maybe this makes a difference.
It doesn't make a difference at all with the bigger ones
because we will never get them to a Court.
Mr. Bereuter. The time of the gentleman has expired. The
gentleman asked for 30 additional seconds. Unanimous consent
for 30 additional seconds.
Mr. Delahunt. I thank the Chairman because I won't be here
for a second round but I really do wonder if the Chilean
government would have acted but for that out of control Spanish
magistrate that you referred to.
Mr. Bolton. You know, we just had an election in Chile and
the new president who has come in had a different view of what
to do with Pinochet and other military figures. This is
something that has been the subject of ongoing discussion, not
just in Chile but in Argentina and Uruguay, and a number of
countries. And the point that I would make, and the point I
wanted to make to Mr. Gejdenson about Indonesia, is that the
Chileans may not do what you would do or what I would do. The
Indonesians may not conduct the kind of trial you would conduct
or I would conduct. But there is an element of national
maturation and assuming democratic responsibility that they
ought to be allowed to----
Mr. Delahunt. I don't disagree with that but the treaty
itself does provide for the retention of jurisdiction.
Mr. Bolton. Well, hypothetically it provides what is called
the doctrine of complementarity, which was made up for this
Court. We don't know sitting here today in fact whether the
resort to national courts will be permitted or not, even for
the United States.
Mr. Delahunt. But let us make it that way.
Mr. Bereuter. The time of the gentleman has expired again.
I will get into the matter of complementarity in the next
round. The gentleman from American Samoa, Mr. Faleomavaega, is
Mr. Faleomavaega. Thank you, Mr. Chairman. I certainly want
to compliment and thank both gentleman for their testimony this
morning surely with tremendous eminence and history in terms of
the important positions that they held with the previous
administrations. I do have a couple of questions. It seems like
what we are looking at on several fronts is that our national
sovereignty seems to be in question concerning the proposed
Our Constitution allows us to conduct foreign relations
with other countries, treaties and of the sort, which is why,
for example, we are members of the United Nations. We live in
the reality of a world where there seems to be a desire for one
consistency, and perhaps that is the reason why so many nations
of the world are motivated to establish an International
You can talk about Pol Pot and extermination of 2 million
Cambodians. Nothing is done about that. You can talk about
Stalin's extermination of 60 million Russians, if I am correct
on my history on that. You can talk about--you mentioned
Indonesia, Mr. Bolton. You can talk about the extermination of
300,000, 200,000 East Timorees and 100,000 West Paupunig [ph]
Indians by both Sukarno and Suharto and their dictatorship. You
can talk about Rwanda. You can talk about Milosevic
exterminating 250,000 Yugoslavians before we got involved in
So if you are looking from that perspective, we haven't
done anything as a world community. I took notice also in your
statement, Mr. Bolton, where you said that Pinochet should have
been handled by the Chileans. Why did we not allow Noriega to
be handled by the Panamanians. We went over there and just got
him out. It was in our national interest. I know that. I do
agree with Secretary Eagleburger's statement everything and
anything should always be our national interest and ought to be
in terms of establishing a world court or being a member of the
United Nations or whatever. It should always be in our national
But my question is what would the world have been like if
we did not join as a founding member of the League of Nations,
the United Nations, a member of the Security Council, and if
you felt that we have compromised our national interest by not
being members of these important organizations.
Mr. Bolton. Well, I am a supporter of United States
membership in the United Nations, and I have never been
otherwise. The question with respect to the International
Criminal Court is not the broad question of involvement in
international affairs. The question is whether this is both a
useful and a workable instrument to accomplish the goals that
you are talking about. And for the reasons that I have stated
before, and I won't repeat, I don't think it is.
So it raises the question in the case of the International
Criminal Court, as in the case of the International Court of
Justice formed in 1945, which is simply not a player in
international affairs today. The United States has withdrawn
from the mandatory jurisdiction of the ICJ, and it simply has
no impact because it has been politicized. The judges vote
purely along political grounds, and I think it has next to no
respect and certainly very little following in this country.
What is striking about the ICC is that the argument that
its proponents make are exactly the same arguments that were
made in 1945 about the ICJ, and yet there is no new evidence
that is adduced to show that this Court will be any more
successful than the International Court of Justice.
Mr. Faleomavaega. If I am correct, I think, and of course
we have our constitutional procedures to follow, with the
advice and consent of the Senate it so happens that this
Administration accepts the ICC and what it purports to do at
least to help. Are we jumping the gun perhaps that we ought to
let the Senate follow its procedures and advice and consent and
know exactly the specifics in terms of whether or not the Rome
Statute should be applied to our own country.
Mr. Bolton. I don't think so in this sense; other countries
are considering at the moment whether or not to ratify, and
only 14 have. You know, it has been 2 years since the Rome
Statute was signed, so having 14 ratifications is not exactly
moving with lightning speed. And I think that vigorous
leadership by the United States could have an impact on the
decisionmaking of other countries, so I hope Congress would go
Mr. Faleomavaega. Well, one thing that I know for certain
that our national sovereignty certainly I do not believe has
been compromised in any way. This is the reason why we have not
accepted the Law of the Sea Treaty. We have not accepted the
Kyoto Treaties in terms of the global warming issues, the land
mines as Secretary Eagleburger had stated earlier, much to the
chagrin and protestations of many nations of the world about
So I don't see where we are compromising our efforts by
this Administration's efforts to see that our sovereignty is
not compromised by the provisions of the Rome Statute. This is
where I am having a little problem in trying to agree with you
gentlemen and your concerns.
Mr. Bolton. Secretary Eagleburger wanted to get in if he
Mr. Bereuter. The gentleman may respond.
Mr. Eagleburger. I just want to come back to one thing you
said, sir, which is you mentioned the Noriega thing and we went
and got him. This is in a sense precisely the distinction I was
trying to make. You can argue whether we should have gone to
get Noriega or not but the fact was he was in charge of a
country. Pinochet had already been removed. We believed that
Noriega was enough of a problem for us and for most Panamanians
that we in fact needed to act unilaterally to get rid of him to
get him out of there.
All I am saying here is it is precisely that kind of action
on the part of the United States, whether you agree with a
specific act or not, that we must be careful to be able to
preserve our ability to do. That is all I really was saying.
And I think this treaty tends to act against our ability.
Mr. Faleomavaega. So we should have done the same for
Mr. Eagleburger. No. Well, we don't want to get into that
now, do we, really?
Mr. Bolton. If we had him in custody.
Mr. Bereuter. Many of us would feel more comfortable with
unilateral action if in fact the President would seek the
advice of Congress in a very formal fashion as they did in the
Gulf War but that was not done in Bosnia. It was not done in
Kosovo. And basically you have a decision ultimately made by
one man as to whether or not the United States is going to defy
international pressure and concern.
Mr. Eagleburger. Mr. Chairman, that is absolutely correct.
The ability of an administration to do what it should do with
regard to consulting with the Congress is a different issue. I
will say to you I think that with regard to the Kuwait war we
worked very hard in fact to do the consultation before we
Mr. Bereuter. Well, indeed it happened and we had the
longest debate in the history of the House of Representatives
on that issue. Ultimately the Congress approved the President's
decision to gather a multi-national force. The gentleman from
New Jersey, Mr. Payne, is recognized.
Mr. Payne. Thank you very much, Mr. Chairman. I certainly
have a different opinion regarding this legislation. Actually I
really have to admit that I did not read it carefully before I
came here but just listening to the testimony, and that is why
these hearings are so important, that I certainly am more
awakened about how devastating this thing is in my opinion. I
certainly am not a diplomat and have a lot of respect for
Secretary Eagleburger and what his whole career has been.
But I think we do have to be careful when we just say that,
you know, there is no other people in the whole world like us.
I mean if I were a Canadian, I would be a little upset, I
guess, if my cousin lived in New York and I lived in Toronto or
even some strong British friend that lives in London that has
been supportive of U.S. policy and we had been partners.
I would just feel a little uncomfortable, of course, even
living in Lagos in Nigeria. But I think that one of the
problems that we do have is that we do have to be the strongest
nation in the world. We do have to preserve. We are the world
power. There is nothing that we can do about that. And it is
great and that God did shed his light on us and we got the
purple mountains majesty from sea to sea.
But there is the world and there are other people whose
blood is red and eyes are blue and the rest. I think when we
continually talk about only us outside--I think we are going
down the wrong track when we just figure that we can build
these missile defenses that come like 300 miles from the target
and that we can stand alone, put another billion in and maybe
you will get 200 miles from the target.
We can't stand alone in this world and the quicker we
understand, I think the better. That does not mean that we are
weak. I mean this bill talks about cutoff aid to anybody who
joins the treaty like the rest of the world, IMED or talking
about any kind of assistance. This is one of the most
ridiculous pieces of legislation I think I have seen. If you
are talking about the United States with our 270 million people
standing against the other 8 billion people in the world, you
know, our grandchildren are going to have a very, very isolated
And, you know, to be against everything, land mines, I
still don't understand why we are against land mines. Who is
going to walk down from North Korea to South Korea so you have
land mines that--I guess land mines keep people from walking
down. So I guess they are going to walk down from North Korea
to take over Seoul. It makes no sense at all. It is a poor
excuse. It is not even an excuse.
We are even against--let me ask Mr. Bolton, are you in
favor of the Decertification Treaty? That is the one that says
the desert is coming down from the world and the world is
drying up and that we ought to do stuff to prevent it from
happening. The Senate has not ratified. Let me just ask. I want
to ask. I know where you stand on ICC and Chow soldiers and
land mines and all the other things. What about the
Decertification Treaty? Have you looked at that one?
Mr. Bolton. I have to confess I am not an expert on the
Mr. Payne. OK. We are against that too. We are against the
desert coming down, taking--I mean it is amazing that the U.S.
Senate--believe me, we are not supposed to speak about the
other House, thank God, but this is just amazing. Now let me
just ask one quick question since my time has probably almost
expired. But, like I said, I didn't read this thing carefully.
I don't want to say it too much. One of my opponents will take
it off the record.
But let me just ask this question. I just want to be clear
about it. Now either one of you can answer this. Maybe
Secretary Eagleburger will mention it. You believe the real
risk of the Court is a politicized prosecutor or Court would,
what do you call it, indict a high U.S. Government official
ultimately responsible for alleged war crimes but not U.S.
There was this question about soldiers being given--that
the one that said that soldiers should go somewhere, he would
be indicted and not the ground troops.
Mr. Bolton. Sure. If you read the provisions of the Rome
Statute dealing with who is liable for alleged war crimes or
crimes against humanity, it clearly permits the responsibility
be taken up the chain of command, and that those who ordered
the activity in question or in some circumstances those who
knew about the activity or should have known about the activity
can be liable as well. So this is far from a hypothetical. I
think it is a very real intent of those who drafted the Rome
Mr. Eagleburger. May I make----
Mr. Payne. Yes.
Mr. Eagleburger. I would make one point here, which is
again I basically agree with most of what you said. I have to
make a distinction between--let me reverse myself there. There
is no question that one of the problems we will face as we go
into this next century is a neo-isolationist attitude in this
country and we have to be very careful of it and that means
most of the time we have to participate. I am not arguing any
of that. In fact, I think it is a big danger that we may in
fact try to isolate ourselves.
However, it is in this specific case and only this case
that I would argue otherwise, and I argue it not simply on the
basis of the examples that you and Mr. Bolton have talked
about, namely, an unruly prosecutor or whatever. I have made
the point and I will just make it one more time and then I will
shut up, but my point is in my judgment there is a critical
factor here that we are all ignoring, which is this the way to
make legitimate international law where a group of countries
get together and without the responsibilities the United States
has and will have to have whether we like it or not draw up
this treaty which will, if nothing else, make it more difficult
for the United States to do what it feels it has to do
internationally to maintain stability in the future.
And I worry, I don't want to get the United States as the
world's policeman but on the other hand I don't want to lock
our hands any more than we have to in terms of our ability to
act when we feel we must in the coming decades. And one thing
this country has that not an awful lot of other countries have
is that when decisions are made by the executive in the end
there is the check of the Congress and the check of the
American people, and they vote, and that to me makes a great
distinction between us and an awful lot of the rest of the
Mr. Bolton. Mr. Chairman, could I just make one more point
very quickly in response to Mr. Payne? Mr. Payne, I am sure you
remember the tragic case of Colonel Higgins, who was a U.S.
officer assigned to the U.N. Troop Supervisory Organization
headquartered in Jerusalem who was captured by terrorists in
Lebanon when he was serving there. And he was brutally tortured
and killed in the late 1980's, 1989. Colonel Higgins was
selected out of the 30-plus governments represented in UNTSO by
military officers, selected quite clearly because he was an
American. There is no doubt about it.
And that is why, for example, the provision in this bill
section 5 on restricting American participation in
peacekeeping, unless the Americans involved were protected
against the jurisdiction of the International Criminal Court I
think is a real and important point, and goes to the question
of why we are treated differently than the Canadians. Thank
you, Mr. Chairman.
Mr. Payne. Yeah, just in response to that. There is no
question that we always are going to be treated differently.
You all made that case, which I agree. We are a super power,
the only one. But I do think that to the extent of what this
legislation talks about about restricting, for example, IMED,
or other kinds of--any kind of assistance to any country that
becomes a party to this, we are really, I think, treacherously
going down the wrong path.
Mr. Bereuter. I thank the gentleman. I would recognize
myself now for an opportunity to, with my colleagues and their
opportunity forthcoming, wind up with a few questions to you
that I think ought to be asked. I have two with a third
comment. The Clinton Administration is trying to get the ICC to
forego criminal jurisdiction over Americans and persons of
other countries that are not signatories to the Rome Statute.
First, how do you assess their prospects for success, and
if they do succeed do you think that American servicemen and
other governmental officials will in fact be safe from
prosecution by the ICC? Second, we have had the subject of
complementarity come up. It is imbedded in the Rome Statute.
How does complementarity work, Mr. Bolton? I think that might
be best addressed to you. Describe for us how it might protect
an American president or a Secretary of State or a Member of
Congress against prosecution by the ICC.
Third, I would just observe if you have any comment on the
observation that Israel did not sign the Rome Statute. Now you
would expect that a country with direct experience and its
people with genocide would feel compelled to stay outside an
institution that is ostensibly designed to punish and prevent
genocide and other war crimes. Do you have any insight about
that? And I call on each of you to respond to that part that
you feel most comfortable in addressing.
Mr. Bolton. Mr. Chairman, perhaps I could go first. On the
subject of the Court's jurisdiction over Americans the Clinton
Administration negotiated very hard in Rome to try and carve
out exemptions from the Court's jurisdiction so that states
that did not sign the Rome Statute could not have their
personnel subjected to the jurisdiction of the International
Criminal Court. It was an issue that was explicitly raised. It
was explicitly rejected.
Now I have followed the Administration's work in the
various U.N. preparatory commissions as they tried a variety of
different ways to get out from under that problem, and
specifically the latest thing they had been negotiating under
article 98 of the Rome Statute having to do with not simply
jurisdiction but the physical act of surrendering a defendant
to the authority of the Court. I think the chances of their
negotiating successfully to get the kind of exemption that they
are trying to get are close to zero; the reason is that to get
the exemption that they were denied expressly in Rome, you
would have to assume that the other states party to the treaty
had either gone to sleep, or had given up their objection.
I don't see any possibility that that is going to happen. I
think this is an exercise that is doomed to failure. What they
have achieved so far, at best, can be described as ambiguous,
and it is because people know that the next stage is
potentially dispositive. But even if they got something like
what they have achieved already, bearing in mind that the
ultimate decisionmaking authority over rules of evidence and
elements of crimes for the Court is the Court itself, I think
it is very, very unlikely that the Court is going to rule
against a basic decision taken at Rome over the
Administration's objections. So I think this entire effort,
quite frankly, is a waste of time.
Mr. Bereuter. Mr. Bolton, just to set the context here
again for the second question. Some supporters of the ICC say
that the concept of Americans being prosecuted is overblown and
they point to complementarity imbedded in the Rome Statute as
the reason for their comments so now can you take on what
complementarity does, how it is supposed to work?
Mr. Bolton. Mr. Chairman, the theory of complementarity,
and I stress the theory of complementarity, is that in the
first instance the Court would defer to the national judicial
systems of countries of defendants alleged to have committed
war crimes. In theory, it is only when that system fails to
function or functions inadequately that the prosecutor would
step in. First, Mr. Chairman, we have absolutely no experience
with this doctrine in practice. This is nothing but a
prediction based on hope, not on experience.
And, second, if you actually read the provisions of the
Rome Statute that embodied the principle of complementarity, I
think you can see the ambiguity. And I will just very quickly,
if I may, read one where it says the Court will not take
jurisdiction over a case where a state has investigated an
alleged war crime, and now I am quoting from the Rome Statute,
``and where the state has decided not to prosecute the person
concerned unless the decision resulted from the unwillingness
or inability of the state genuinely to prosecute.''
So let us say that a prosecutor, a military prosecutor in
this country, looked at a particular circumstance and made a
decision for lack of sufficient evidence or whatever that the
prosecutor was not going to proceed against a particular
American serviceman. It is up to the International Criminal
Court to say whether they accept that or not whether the state
genuinely decided not to prosecute or whether it was just
What that means is that the theory of complementarity is
ultimately dictated in reality by the decisions of the
International Criminal Court and that is a cession of authority
and sovereignty to an as yet unestablished, untested Court that
I find excessively risky, and not just in the case, Mr.
Chairman, of a GI, but in the case of our top national
decisionmakers. That is what I am really worried about.
Mr. Bereuter. Thank you. Mr. Eagleburger, Secretary, do you
wish to address any of those or do either of you wish to
address or speculate why Israel did not sign the Rome Statute?
Mr. Bolton. Could I maybe take a shot at Israel and then
let Larry handle the rest of it. The particular provision that
Israel was concerned about was in the statement of offenses
contained in the Rome Statute for war crimes. There is
language, and I won't get into detail here, but language that
basically changed the applicable language from the fourth
Geneva Convention in a way that made it much more likely that
Israel could be, and its practices in the occupied territories
of Gaza and the West Bank, could be subject to prosecution.
Now this sounds like it is just a technical kind of dispute
over the movement of persons by an occupying power into
occupied territories, which is what the U.S. position about
Gaza and the West Bank has been consistently since 1967. But
really, Mr. Chairman, this shows exactly the risk of
politicization inherent in the International Criminal Court. To
me it is only a question whether the first complaints filed by
the prosecutor are going to be against Israel or the United
States. It will be a real race to the courthouse door.
And the states that wanted this changed provision in the
definition of war crimes were exactly Israel's political
opponents. And what will happen, and one of the reasons Israel
was concerned about it, and I think quite properly, is that it
was just a setup way for score settling, not a true search for
justice in any meaningful sense of the word, but a way to carry
on military and political conflict through ostensibly legal
Mr. Bereuter. Thank you. Mr. Secretary, do you wish to
Mr. Eagleburger. No.
Mr. Bereuter. The gentleman from Massachusetts is
recognized for 5 minutes if he has further questions.
Mr. Delahunt. I won't take my whole 5 minutes but thank
you, Mr. Chairman. I agree with you, Secretary Eagleburger, in
terms of the concern about the return of isolation. I think we
are at the point where the global economy is not going to allow
it anyhow. You keep referring to making international law. By
that I presume you are talking about procedural law because I
don't see--I mean of course as decisions would come presuming
that the Court ever came into existence, it would establish a
certain level of precedent and stari decisis, if you will.
But what I see it more is establishing an infrastructure. I
don't think that is making international law per se. At least I
want to be more clear in terms of where you are coming from on
Mr. Eagleburger. You are correct, sir, in the sense that it
is at this stage procedural but let me try to make my point
this way. I understand, for example, that with regard to the
mining treaty, for example, that there are now people who
including the lady here in the United States whose name I can't
remember, who are arguing that once that treaty was established
even though the United States did not sign it, it is now
Now, OK, you can argue that that is stretching the point
and that she won't make her point. My worry is that in fact she
will over time. If you take a look at what has happened, I
think in terms of thinking about war crimes and how we deal
with issues like the mining treaty, there is a growing tendency
on the part of those who are advocates of that kind of approach
to argue that once it is done then 5 countries agree with it or
15, it is now either international law or close to it.
And if we go ahead with this criminal court, it seems to me
that, yes, it is procedural in what we are debating now but I
think there is a real worry that it becomes much more than that
as it begins to, I would say, build decisions which will lead
to differences in itself.
Mr. Delahunt. With due respect, I think that would happen
anyhow even in terms of the ad hoc tribunals that are in
existence now. What I suggest is that is going to happen
whether the ICC comes into existence or whether the ad hoc
tribunals, whether they deal with Rwanda or the Yugoslavian
one. I think we are building up a body of international law.
But let me go to Mr. Bolton for a minute.
You made reference to the European court on human rights
and some suit that appeared to be frivolous that was brought
against Britain. I mean in any system, any legal system of
justice, I think we are going to always have to anticipate
frivolous assertions and allegations. I mean we never are going
to design the perfect system. I guess what we are looking for
is less than perfect, as much imperfection as we can deal with.
I think that you, Mr. Bolton, point out the most legitimate
concern, and that is the issue of prosecutorial accountability.
But don't we have the capacity to design a system that deals
with that particular issue, the concerns I think that you
justifiably raise because I am sure in your experience and in
mine, we have both observed prosecutors who abuse that awesome
power, the power to deprive individuals of their liberty.
But whether it be some sort of oversight mechanism, whether
it be length of term, whether it be the appointing authority, I
mean what I suggest is that, you know, within the wealth and
the abundance of our experience there are ways to deal with the
issue of prosecutorial accountability.
Mr. Bolton. That is entirely correct. In this country we
call it democracy. The legitimacy that prosecutors have flows
from the fact that they are ultimately politically accountable
to elected officials. That is not the case for the prosecutor
in this Court. He is ultimately accountable first to the Court
itself, which is a system of allocating power that we have
found unacceptable in this country since the framing of the
Constitution, and, second, ultimately to 140 or more states
party to the agreement.
That is like saying the General Assembly of the United
Nations is responsible for the prosecutor. I don't think
anybody could argue that is going to work.
Mr. Delahunt. OK. I mean, again, just to take that, I mean
whether it is the Security Council that has authority over the
Court at some point in time, unanimity, if you will, would be
Mr. Bolton. But, Mr. Delahunt, I mean that is a very
important point. The original position of the Administration
was that the prosecutor of the ICC could only be triggered by a
resolution, by an affirmative decision of the Security Council,
and that was rejected. Had that provision been in the treaty, I
still wouldn't support it but a lot of other people would have
Mr. Delahunt. All right.
Mr. Bolton. Now could I just make one other real quick
Mr. Delahunt. Of course.
Mr. Bolton. On the question of frivolous charges, the
subject of Kofi Annan's remark is not frivolous. The man is the
Secretary General of the United Nations and whether you agree
or disagree with him when he speaks about the authority of the
Council you have to take it as seriously reflecting some
people's views. He wasn't the only U.N. official to speak about
the legality of NATO's air campaign over Yugoslavia.
And I want to say I opposed that campaign as a matter of
policy. But the U.N. High Commissioner for Human Rights, Mary
Robinson, said with respect to the NATO bombing that it was
unacceptable that NATO ``remains the sole judge of what is or
is not acceptable to bomb.'' And she went on to say ``It surely
must be right for the Security Council of the United Nations to
have a say in whether a prolonged bombing campaign in which the
bomber choose their targets at will is consistent with the
principle of legality under the charter of the United
Nations.'' She is a former president of Ireland and she was
saying those things so----
Mr. Delahunt. I take with great credibility any statements
by former presidents of Ireland.
Mr. Bolton. I am sure you do.
Mr. Delahunt. I want you to know that, Mr. Bolton.
Mr. Eagleburger. I wish she hadn't made the point.
Mr. Delahunt. That is right.
Mr. Bolton. But that is why the Belgrano litigation is not
frivolous and I don't think Mrs. Thatcher and her government
take it as frivolous.
Mr. Delahunt. I think Mrs. Thatcher has left the
Mr. Bolton. Former government.
Mr. Bereuter. The time of the gentleman has expired. Let us
avoid Irish politics here, if we can. The gentleman from New
Jersey, Mr. Payne. Do you have any further questions or
Mr. Payne. Just a brief comment. I know the gentleman and I
agree with him on the statements from Irish former presidents.
The question though about the fact, and I hope too that
isolation won't come about, and he said that because of global
economy it will. He feels that we don't have to worry about
that isolation business. You have to recall that it was in the
1930's when there was a big depression in Germany that Hitler
decided he needed to do something to divert attention so if we
ever get back to a down turn, you know, in economies then that
makes it even more dangerous as we stand alone and build this
big wall around the United States
As a matter of fact, as you may recall, there has been
legislation put in the bill--you know, a fence in Texas to keep
Mexicans out. I mean just build a fence on the whole border.
That way we won't have illegal immigrants. So we get to the
point where sometimes we really have to question it. That has
nothing to do with this but let me just ask this question and
maybe it has been answered, Mr. Bolton.
What situations in the recent past, you just mentioned the
NATO business, do you think that this International Court of
Justice would have prosecuted the President of the United
States or some high official?
Mr. Bolton. Well, let me take the example of the NATO air
campaign over Yugoslavia, which was not approved by a
resolution of the Security Council and in fact I think the
Administration correctly judged that if they had taken it to a
vote in the Security Council it might well have been vetoed by
both Russia and China. The question of both the general
legality of the campaign and the subject of the specific
bombing targeting decisions and actions by NATO were considered
by the prosecutor for the Yugoslav tribunal and in effect,
although she declined to prosecute, she concluded that she had
jurisdiction at least over the operational aspects of the
And I think that is the kind of thing that we should have
considerable pause on. If mistakes were made by NATO officials,
by American officials in the conduct of that air campaign, we
have, and quite properly so, mechanisms in the military justice
system in this country to deal with that and to allow our
senior officials to be exposed to second guessing after the
fact and possible prosecution for that seems to me to be
Let me give you another example. There has recently been
controversy over an engagement that took place at the end of
the Persian Gulf War when General Barry McCaffrey and his
forces destroyed an Iraqi tank and armored personnel column.
And there has been a lot of discussion about whether he acted
in violation of the cease-fire or not. I remember that from the
last days of the war where I saw the cable at the time about
that engagement, but I could easily see a prosecutor saying,
well, I would like to look into that and I think McCaffrey may
be subject to indictment for having violated the terms of the
cease-fire and therefore having committed a war crime under the
McCaffrey, under the statute as presently drafted would be
subject to the jurisdiction of the Court. Now I don't think
McCaffrey did anything wrong at least based on what I know but
what I do know is that the United States has a fully
functioning military justice system that can deal with it if he
Mr. Payne. Just finally the question about extradition. By
us not being a part of the worldwide system, for example, you
may recall that one of the perpetrators [genocidaires (ph)] in
the Rwanda genocide where, between 500,000 and 1,000,000 people
were killed and that was it was planned, and of course as you
may recall no one in the world wanted to act.
One of the genocidaires came to the United States and was
in Texas for a year, year and a half, but because of this ICC
potential and the fact that we did not feel that we could
extradite him because it would set a precedent, you know, we
could become the haven, I guess, of people that want to slip
into the country, we were bound then to harbor a person like
this who is responsible for the deaths of thousands and
thousands of people. He sat in Houston, TX, or somewhere and
may still be there. How do we prevent that kind of business
Mr. Bolton. Well, I think the question of that particular
extradition proceeding had to do with the question whether the
applicable treaty provisions really governed an institution
like the ad hoc tribunal, but I think the purpose of the
legislation, as I understand it, by precluding agencies of the
government at all levels, Federal, state and local, from
cooperating is to demonstrate the seriousness of American
opposition and I think that is a very important point to make.
And we are not alone in having concerns about extradition,
particularly of citizens of countries to something like the
International Criminal Court. One of the reasons for Latin
American countries in particular why ratification has been so
slow in coming is that those countries in many cases have
constitutional provisions that prohibit their citizens from
being extradited for trial in another country and they are
facing now looking at the provisions for surrender to the
International Criminal Court whether they actually have to
amend their constitution. So this is not a problem that is
peculiar to the United States.
Mr. Bereuter. The time of the gentleman has expired. I have
a few concluding comments as I adjourn but before we do that, I
want to recognize the gentleman from California, Mr. Berman,
for the 5-minute rule, if he has any comments or questions.
Mr. Berman. Thank you, Mr. Chairman, and it is good to see
you, Mr. Secretary, Mr. Bolton, and I apologize for not being
here for your testimony and the earlier questions. Mr. Bolton,
you just said in response to a question by Mr. Payne under the
statute McCaffrey might be subject to prosecution for war
crimes. What statute?
Mr. Bolton. The Rome Statute, the substantive provisions,
not retroactively. I am using that as an example prospectively
of conduct during the course of warfare that would be subject
to possible oversight by the prosecutor.
Mr. Berman. And who passed this statute, this Rome Statute?
Mr. Bolton. The Rome Statute was signed by over 100
countries in Rome. It has been ratified so far only by 14.
Mr. Berman. And the United States did not sign?
Mr. Bolton. That is correct.
Mr. Berman. And how many ratifications are needed before--
Mr. Bolton. Sixty.
Mr. Berman. Sixty. Let us assume 60 parliaments around the
world ratify. Now we have an International Criminal Court to
pursue into this statute. This bill goes beyond prohibiting the
United States from signing the treaty, as I understand it, or
convention. Is that----
Mr. Bolton. It is called the Rome Statute. It is a treaty.
Mr. Berman. But it also seeks to prohibit our cooperation
with the International Criminal Court.
Mr. Bolton. Right.
Mr. Berman. Let us assume it is ratified and Milosevic, for
example, is apprehended and brought to trial for different
kinds of war crimes and the United States has evidence that
would be useful in that prosecution. Why would we beforehand
want to say that no matter what the situation, no matter what
the circumstances, no matter whom we are talking about, if this
is the place where he is being brought to justice, we are not
going to assist in the prosecution of him?
Mr. Bolton. Well, I think there are three reasons for that.
The first deals with the question whether or not the evidence
is classified or not. Now let us assume for purposes of this
discussion that it is unclassified. The reason not to cooperate
even in the case of Milosevic is to demonstrate beyond any
question to any other state party to the treaty that we do not
accept the legitimacy of the Court.
We don't accept legitimacy for all the reasons we have been
discussing here for the past couple of hours which I won't
repeat but that is to emphasize and underline the strength of
the United States view. That is point one. Point two, if we
have evidence, other people might have evidence as well. It is
not like it is, at least on an unclassified basis, that we are
saying the Court can't get any evidence at all.
We are simply saying for our perspective we are
unilaterally not cooperating with the Court, but I think the
more difficult circumstance--and the proposed legislation also
covers this--which really would trouble me is where we had
classified information. And I don't have any trouble at all in
that circumstance saying, ``Of course we are not going to turn
over classified information to a Court like that; that could
compromise sources and methods that we couldn't permit to be
used in the prosecution of Milosevic without compromising our
own intelligence efforts.''
Just as you are very familiar with, I am sure, in this
country where we have evidence against terrorist activity in
this country that is obtained that we can't use in a
prosecution in Court.
Mr. Berman. No one is talking about a statute that compels
cooperation with this International Criminal Court.
Mr. Bolton. No, but it is to prevent the cooperation from
an Administration that has demonstrated by its every action
that it wants to do exactly what would be prohibited by this
Mr. Berman. I think that is quite a statement. You are
saying that this Administration apparently would want to
compromise sources and methods----
Mr. Bolton. No, no, no. Come on, Congressman Berman.
Mr. Berman. That is what you said.
Mr. Bolton. What I said was that the Administration has
demonstrated repeatedly it would love to sign the Rome Statute
if it could figure out how to do it and it wants to cooperate--
Mr. Berman. I don't understand what you mean. Do you mean--
Mr. Bolton. It is testified publicly that it would seek to
cooperate with the Court in every occasion that was possible
and I think that is one of the reasons it has given rise----
Mr. Berman. Well, if it would love to sign the Rome
Statute, why doesn't it?
Mr. Bolton. Because it recognizes, No. 1, there is
opposition in the Pentagon, and, No. 2, it would be dead on
arrival in the Senate.
Mr. Berman. As opposed to the Comprehensive Test Ban Treaty
or any of the other treaties that have not been ratified by the
Mr. Bolton. I am not aware of a single Senator who has
endorsed the Rome Statute as currently written. Perhaps you
Mr. Berman. I would like to know of--I am not saying we
should sign the Rome Statute. I would like to understand why we
should have a provision that prohibits any Administration, not
just this Administration, any Court--you can talk about a
deposition at a trial where you need the original transcript of
that deposition to impeach a witness there and, as I understand
it, this prohibits any state or local government and presumably
any branch of any state or local government or Federal court
from providing upon request certified copies of transcripts of
testimony given in a Court to the Criminal Court for the
purposes of aiding in the prosecution of someone that there is
a consensus we feel has engaged in war crimes activity.
It seems like in order to limit your fears about what might
happen, you are tying the hands in allowing things that could
happen in a form that we would prefer didn't exist but does
exist. It has legitimacy in that a certain number of nations
have signed it and have given it that legitimacy. We don't have
to accept it or make our folks subject to it or participate in
it to say that, you know, under the principle that even a
stopped clock is right twice a day. There may be some
situations where we want the flexibility to let the only
possible way in which somebody could be brought to the bar of
justice for that to be a successful operation. It just seems
like an overage here.
Mr. Bereuter. The time of the gentleman has expired.
Mr. Smith. Mr. Chairman.
Mr. Bereuter. The question has been asked several times and
it may well be a question that the legislative body will have
to address when we take up this matter.
Mr. Smith. Mr. Chairman.
Mr. Bereuter. Yes. I did say I would conclude the hearing,
but I do recognize the gentleman from New Jersey.
Mr. Smith. Thank you very much, Mr. Chairman. Two bills
that were on the floor, one Veterans and one dealing with the
issue of capital punishment precluded my being here so I missed
what I am sure was very eloquent testimony from two good
friends, Secretary Eagleburger and Secretary John Bolton. Let
me just ask unanimous consent that my full statement be made a
part of the record, Mr. Chairman, and just make a couple of
I was at the and led the delegation, was head of the
delegation at the OSCE parliamentary assembly in Bucharest just
a couple of weeks ago and there was an issue dealing with the
International Criminal Court and there was a resolution to try
to get states to ratify it, to accelerate ratification. Our
delegation took the view of either abstaining or voting against
it. I spoke very vigorously against the resolution and did so
not because I am not for international criminal tribunals.
As a matter of fact, our Subcommittee on International
Operations and Human Rights took a back seat to no one nor did
the Helsinki Commission when we were talking about the creation
of the Balkans war crimes tribunal. As a matter of fact, I
offered amendments to increase the amount of money donation
from the U.S. Government to try to accelerate that very
specific war crimes tribunal and did likewise for the tribunal
dealing with Rwanda and the genocide that took place there.
The problem with the Rome treaty, as I see it, is a lack of
definition. The fact that the article 5, the crime of
aggression, isn't even defined yet and yet it is included and
countries are being asked to ratify and the fact that there is
immense elasticity with definitions in other areas means that
this is ripe for political manipulation. The fact that the
prosecutor's office can accept the work of NGO's, and again I
take a back seat like the Chairman and like others, NGO's play
a very fine role.
But the independence of a prosecutor should be just that.
He or she should have the ability and the capability in terms
of assets to very vigorously go after a real bona fide war
crime. But again we are dealing with language that is very,
very imprecise and I think that we need to look at this very
carefully. Finally, Mr. Chairman, I am concerned about the
impact this might have on peace keeping and peace making.
I think any Commander-in-Chief would be loathe to send our
men and women into harm's way believing that there could be a
very frivolous but very mischief-making assertion of war crimes
being asserted against our men and women if they take out a TV
tower, for example, and that is construed not to be a military
assess even though it is putting out propaganda and calling
people to a war-like footing in that country as did Milosevic,
and yet some people might say, oh, that should be off limits.
This is a very, very problematic area. We need to go slow
and where there are war crimes, like I said, there needs to be
at least ad hoc tribunals convened, but there is some very real
reason for pause with regards to this. And again I would ask
that my full statement be made part of the record and thank our
good friends for being here today.
Mr. Bereuter. Without objection, that will be the case. I
thank the gentleman for his excellent statement. I am in
agreement with what he said. As we conclude these hearings, I
want to thank first of all the witnesses for the time that they
spent with us and for the way they have addressed our
questions. I am very concerned about the statement made by the
Secretary General that is a quote in your statement, Mr.
I have known this gentleman for a long time before he was
Secretary General. I have great respect for him. But I think
there is something that is happening gradually and it is very
insidious with respect to our sovereignty. We have heard such a
great amount of warped rhetoric about loss of sovereignty that
sometimes we may not recognize it when it is happening. And I
would say that there is no way that the United States should
accept the legitimacy of the ICC if it is established.
Since I spend a lot of time with European institutions, I
have found over the last few years that what has happened with
European nations that are members of the European Union, for
example, is that they have gradually given parts of their
sovereignty to the commission, and it has become the accepted
norm. We have seen, as one of you pointed out, with respect to
Yugoslavia how action probably could not have been taken with a
U.N. resolution in the case of intervening in Kosovo.
Now I, too, disagree with what happened there as a matter
of policy, but I do believe that we would find ourselves in a
stalemate. Increasingly, in the NATO Parliamentary Assembly, we
have votes now which makes it clear that the Europeans by and
large today--NATO members of Europe and EU members--think of
the United Nations as a super-national body to which should be
given or in some cases assenting to the gift of elements of our
sovereignty. That is something that is very serious.
Mr. Lantos raised questions as to whether or not this
legislation which is in part the subject of this hearing,
certainly prompted it, is offered for partisan reasons or for
partially partisan reasons. That is a legitimate question to be
asked. But we had a number of questions also raised as to
whether or not we should attempt to amend the legislation to
address it so that proper consultation and assistance might be
offered and whether or not if we refine relief so that non-
signatory citizens would not be subject to the jurisdiction of
the international court this would be acceptable.
On the other hand, we have presented to you the suggestion
that this is a way of saying that the United States is so much
and so fundamentally opposed to the ICC that this would be a
way of demonstrating on the part of Congress that the
Administration has no further mandate if they had one at all
from the Congress to proceed with attempting to fix the
problems that we see within the ICC.
Gentlemen, you have been helpful to us in sorting through
some of these issues. We are prepared to hold a hearing on this
same subject when we hear from the Administration tomorrow, and
we are looking forward to that as well. And in closing I ask
unanimous consent to include in the record statements submitted
on behalf of the American Bar Association and the Lawyers
Committee for Human Rights. The Committee is adjourned.
[The aboved-mentioned statements appear in the appendix.]
[Whereupon, at 12:13 p.m., the Committee was adjourned.]
THE INTERNATIONAL CRIMINAL COURT: PART 2--RECENT DEVELOPMENTS
WEDNESDAY, JULY 26, 2000
House of Representatives,
Committee on International Relations,
The Committee met, pursuant to notice, at 10:30 a.m., in
room 2172, Rayburn House Office Building, Hon. Doug Bereuter
Mr. Bereuter. The Committee will be in order.
Today we hold the second of two hearings on the
International Criminal Court. Yesterday we heard from two very
distinguished former executive branch officials, former
Secretary of State Lawrence Eagleburger and the former
Assistant Secretary of State for International Organizations
John Bolton. They both testified about the very serious dangers
to our national interest arising from the International
Criminal Court in their judgment, and they urged Congress to
begin to remedy this situation by approving H.R. 4654, the
American Servicemembers' Protection Act of 2000.
As I noted at the outset of yesterday's hearing, there are
many strongly held opinions about the International Criminal
Court and many passionate disagreements.
The one thing that virtually everyone agrees on, however,
is that the way this issue has evolved over the last few years
has been nothing short of disastrous from the point of view of
the national interest of the United States.
Today we are well on the way, it appears, to the
establishment of a U.N.-led criminal court, which will claim
the jurisdiction to prosecute and imprison American
servicemembers and other officials of our Government in certain
instances, irrespective of whether the United States every
becomes a party to the Court.
I know from the prepared testimony of today's witnesses
that they intend to devote themselves to criticizing
legislation that is before the Committee, the American
Servicemembers' Protection Act, and we want your criticism of
legislation and your own view.
Clearly the Administration is not supportive of the
legislation, but we should all reflect for a moment on why the
legislation was introduced, as I understand it.
To my mind, the legislation is about accountability. It was
introduced because there has been a failure in the conduct of
our nation's diplomacy with respect to the International
The Administration set in motion a process that led to the
Rome Treaty. It seems to me that it lost control of the process
while dealing with European Union members in particular those
with a very different attitude about international
organizations than does the United States and its citizens.
A treaty emerged that is prejudicial to our national
interest, so prejudicial, in fact, that the Administration
decided it could not sign the treaty; I commend them for that
Since that time, the Administration has devoted itself to
trying to deal with the problem that presents itself to us.
Apparently, the Administration is no longer trying to bring the
United States into membership of the Court. Rather it now seems
to be focused on trying to make it safe for the United States
to remain outside the Court.
Secretary Eagleburger and Secretary Bolton yesterday
predicted that the Administration is unlikely to succeed in its
efforts to win back what it lost in negotiations in Rome. I
hope their judgment is incorrect, but that is commonly thought
to be the case. They further argued that even if the
Administration gets the technical fixes it is seeking, no
American servicemember or Government official can have real
confidence that he or she is safe from ICC prosecution, so I
hope our witnesses today will not focus exclusively on the
legislation and their criticism of it, although we want that. I
hope you also tell us how our nation can avoid these kind of
problems in the future, because I happen to think, in light of
my contact with the legislators and government officials of the
European Union nations, for example, that this is the beginning
of a long-term problem for the United States.
They are willing to give up elements of their sovereignty,
it is quite clear, and we are not, and should not be.
Before recognizing our panel, I want to first recognize the
Ranking Democratic Member, Mr. Gejdenson, for opening comments
he may have, and then I will introduce our witnesses. Mr.
Gejdenson. Mr. Gejdenson. Thank you, Mr. Chairman.
I am not sure whether the impetus for this legislation was
the crowd that constantly worries about black helicopters and
blue helmets taking over the country or simply a partisan
attempt to gain advantage for the November elections, but it
really just stuns me, and I was frankly disappointed by my old
friend Secretary Eagleburger's responses yesterday.
If you read the legislation, it says the United States
should not help prosecute a known war criminal, it should not
help defend an American who is being prosecuted. It creates an
America attempting to isolate itself without even having a
conversation about where the Court is going.
I think there is no doubt here that we have grave
reservations about the formation of the Court, its operation.
But to argue that an Administration ought to be precluded from
trying to improve an institution that is being created, a Court
that is being created internationally is absolutely stunning to
I think we all agree that at the end of the day it is
highly unlikely that the Administration or the Congress would
be supportive of this Court, but to argue that the
Administration should not try to improve an institution that
will be created, to make sure that America's interests aren't
heard is particularly troubling to me--to argue that somehow it
is not in America's best interest to have conversations with
its closest allies in Europe and just simply walk away and not
have any conversations is unacceptable to me.
I want to ask the witnesses to address their concerns about
the Court, because I think that is important, but also to argue
and articulate why it is important for the Administration to
continue discussions with our European friends and partners. I
particularly want to welcome Under Secretary Slocombe and hope
that he can make a statement at the end of Ambassador's
Scheffer's remarks so we can get the Defense Department's views
All of us understand the difference between Liechtenstein
and the United States as far as our exposure and our
responsibilities worldwide, but I do not think we want the
future of the world left to ad hoc courts and kidnappings as
the only way to deal with international terrorists and
criminals. If Brazil decided tomorrow that it had authority to
go into every Latin American country and just grab whoever they
wanted, the United States and I think most of the world would
be offended. This Court may have the wrong definition, the
wrong process, the wrong players, everything about it might be
wrong, but we still ought to be in that discussion.
Mr. Bereuter. I thank you, Mr. Gejdenson.
It is my pleasure now to call on the gentleman from New
Jersey, who is the Chairman of the Subcommittee responsible for
oversight of Americans' involvement in international
organizations, the gentleman from New Jersey, Mr. Smith.
Mr. Smith. Thank you very much, Mr. Chairman.
Mr. Chairman, the concept of a permanent International
Criminal Court charged with prosecuting the gravest of crimes
against humanity is not a new one. The idea was proposed and
dismissed after the conclusion of the Nuremberg and Tokyo War
Crime Tribunals that followed World War II.
In recent years the idea has gained new momentum, driven
largely by memories of the horrific crimes committed in Rwanda
and the former Yugoslavia. I share the ideals of many ICC
supporters. If we could construct an entity that would
impartially prosecute only genocidal tyrants and war criminals
I would support it without hesitation, but we do not inhabit an
ideal world. The difficulty is in devising a system that will
prosecute Pol Pot but not President Clinton, that will indict
Ratko Mladic but not Norman Schwartzkopf.
I am concerned that the Rome Statute of the International
Criminal Court fails to accomplish that goal and that it is
susceptible to serious abuse and manipulation.
As it took form, the draft statute ballooned from an
instrument focused on well-established war crimes into an
encyclopedia of still-emerging human rights law. The resulting
statute is a 30,000 word document that covers 77 pages. It
contains sweeping language that leaves many elements of vaguely
defined crimes up to the imagination of international lawyers.
For example, according to article VI the crime of genocide
includes, ``causing serious mental harm'' to members of a,
``national, ethnic, racial or religious group.''
It is true that similar language is contained in the
Convention against Genocide, but the United States took a
reservation to the jurisdiction of the World Court over the
definition of genocide. This is not because we intend to commit
genocide, but because the United States was unwilling to
surrender its sovereignty to a body that might be manipulated
by hostile parties using the vague language of the convention
as an ideological hobbyhorse.
Similarly, article V asserts ICC jurisdiction over the,
``crime of aggression''--an offense that is not defined in
international law or even in the Rome Statute itself, a point
that I made repeatedly at the OSCE parliamentary assembly in
Bucharest earlier this month. In the context of domestic law,
such vagueness would be problematic. In the more combative
context of international law it is dangerous.
In addition to the problems posed by its vague definitions,
the statute also claims a jurisdictional reach that is without
precedent. Once 60 countries have ratified it, the statute
claims ICC jurisdiction over any defendant who may have
committed a crime in a signatory state regardless of whether
the defendant's own state had ratified the treaty. By claiming
to bind the subjects of non-signatory states, this self-
executing, potentially universal jurisdiction directly
challenges traditional concepts of national sovereignty.
Finally, the Rome Statute gives the ICC prosecutor a vast
amount of personal power with a minimum amount of oversight.
The statute drafters rejected a U.S. proposal that the
prosecutor only be allowed to proceed on cases referred either
by a sovereign state or by the U.N. Security Council. Instead,
the ICC prosecutor may initiate investigations and prosecutions
on his own authority without control or oversight by any
national or international party.
Under article 44, the prosecutor may also accept any offer
of, ``gratis personnel offered by nongovernmental organizations
to assist with the work of any of the organs of the Court.''
I have long been a supporter of the important work
undertaken by International NGO's, particularly relating to the
protection of human rights and the provision of humanitarian
relief, but it is also true that there exist hundreds of highly
ideological NGO's who look to international bodies to promote
agendas that go far beyond the domestic political consensus in
their home countries. The combination of the independent
prosecutor's extreme discretion with staff provided by well-
funded extremist NGO's could lead to serious problems and
partisanship by the ICC. These are but a few of the problems
that I have with the present form of the Rome Statute.
I readily acknowledge that many, probably most, ICC
supporters do not intend for the Court to be used as a club for
U.S.-bashing or as an engine or radical social engineering, but
once the ICC is established it will take on a life of its own.
Its activities will be restricted by the language of the Rome
Statute itself rather than by the best intentions of its most
responsible supporters, and I just would say finally, Mr.
Chairman, as you know, I take a back seat to no one in
promoting--in the past and present--both the Rwanda War Crimes
Tribunal and the International War Crimes Tribunal for the
When we were holding early hearings in our subcommittee as
well as on the Helsinki Commission I offered language and
amendments to boost the U.S. donation to those important
tribunals and so I take a back seat to no one, but this I think
has some very real problems that need to be addressed. I yield
Mr. Bereuter. Thank you very much, Mr. Smith.
Now our first witness today is Ambassador David Scheffer,
the Ambassador-at-Large for War Crimes Issues at the Department
He has held that office since 1997. He previously served as
Senior Advisor and Counsel to our then-Ambassador to the United
Nations, Madeline Albright.
Before working in the Clinton Administration, Ambassador
Scheffer held a variety of positions including Adjunct
Professor of Law at Georgetown University and Columbia
University, Senior Associate at the Carnegie Endowment for
International Peace, and a stint as a consultant to an
organization called the House Committee on Foreign Affairs.
Ambassador Scheffer is joined by the Honorable Walter
Slocombe, the Under Secretary of Defense for Policy. Secretary
Slocombe has held this position since 1994. Before joining the
Administration, he was partner in the D.C. law firm of Kaplan &
Drysdale and also held positions in the Department of Defense
during the Carter Administration and is a frequent witness
before this Committee and our subcommittees.
Gentlemen, we welcome you. Ambassador Scheffer, we have
your prepared statement, so we welcome a summary of your
testimony. Your entire statement will be made a part of the
record and you may proceed as you wish.
STATEMENT OF THE HONORABLE DAVID SCHEFFER, AMBASSADOR-AT-LARGE
FOR WAR CRIMES ISSUES, U.S. DEPARTMENT OF STATE
Ambassador Scheffer. Thank you very much, Mr. Chairman, and
thank you also, Congressman Smith, and to the ranking Member
I will in fact shorten my statement considerably and look
forward to the full statement being filed in the record.
I appreciate the opportunity to testify this afternoon on
H.R. 4654, the American Servicemembers' Protection Act of 2000.
We all share the same minimum objective, namely to ensure that
members of the U.S. Armed Forces and U.S. Government officials
are not prosecuted before the International Criminal Court when
it is established.
However, as the Chief Negotiator for the United States on
the ICC Treaty of July 17, 1998, and its supplemental
agreements still being negotiated at the ICC Prep. Comm., I
believe that this legislation will cripple our ability to
achieve our common objective. This legislation will not change
a single word of the ICC Treaty of any of its supplemental
documents. Indeed, H.R. 4654 will worsen our negotiating
position at the very moment when we stand the best chance of
securing agreement with other governments to protect our
soldiers and Government officials and to continue our support
for international justice.
The Administration opposes this legislation. H.R. 4654
infringes on the President's Constitutional authority as
Commander-in-Chief and to conduct foreign relations. It is
counter-productive not only because of its direct impact on
critical negotiations relating to the ICC, but also because
H.R. 4654 would seriously damage U.S. national policy
objectives. It would hold national security and foreign policy
interests hostage to the fate of our relationship with
Governments that support the ICC and to the willingness of
other members of the Security Council to immunize our Armed
Forces personnel from ICC jurisdiction.
As the Department has explained in letters to Chairman
Gilman and Representative Gejdenson dated June 30, 2000,
current law prohibits the use of Federal funds to support the
International Criminal Court, but this bill is more sweeping
and harmful to particular Defense and foreign affairs programs.
It would prohibit military aid to any country that has ratified
the ICC treaty with exceptions only for NATO and major non-NATO
Moreover, by requiring that the U.N. Security Council grant
immunity to U.S. personnel to participate in U.N.-authorized
military activity, the legislation could effectively prevent
U.S. military engagement on issues of critical national
The bill would have these detrimental consequences without
providing the Administration with any new authority or any
increased ability to protect U.S. servicemembers from
prosecution. Rather, it would tie the hands of the President as
Commander-in-Chief, and risk harming important U.S. interests
by its inflexibility.
The Administration is actively pursuing the international
protection objectives that are critical to the executive branch
as well as to many Members of Congress. In particular, at the
ICC Prep. Comm. meetings in New York where supplementary treaty
documents are being considered, we are proposing a measure that
in general terms would ensure that servicemembers and civilian
officials of countries such as the United States that have not
ratified the Treaty are not brought before the Court without
the consent of their governments.
We have made clear that without a favorable result the
United States would be compelled to reconsider U.S. military
participation in certain contingencies.
The latest round of ICC meetings ended on June 30. We made
important progress at those meetings, but we have a very tough
struggle ahead as we advance toward the next session in late
November. We are deeply concerned that in addition to imposing
unnecessary and dangerous restrictions on national security
decisionmaking the legislation prejudges the outcome of ongoing
negotiations on the protection objectives we are seeking to
For this reason it would undermine the efforts of the U.S.
negotiators and diminish the likelihood of obtaining those
additional protections for U.S. servicemembers.
Before I comment on particular provisions of the bill I
want to emphasize that the ICC Treaty is designed to bring to
justice those most responsible for the most serious crimes of
concern to the international community, namely genocide, crimes
against humanity, and war crimes. Since 1993, we have been
deeply engaged in every phase of the ICC treaty. We have
supported the creation of an effective and appropriate
International Criminal Court because there is a clear need for
one in the wake of continued atrocities.
Nonetheless, a fundamental flaw remains in the ICC Treaty
regarding the Court's purported ability to prosecute under
certain circumstances the nationals of nonparty states, even
those acting officially for responsible nations like the United
States. Therefore, the possibility of our own exposure under
the ICC Treaty remains, and that is why we are seeking further
protection in the ICC talks.
In my prepared remarks there is considerable attention paid
to the Department of Justice's advice regarding the
Constitutional infirmities of this legislation. I will not
repeat those points in my oral remarks but I strongly recommend
them to you for your attention.
I also believe that the paper submitted by Monroe Lee on
behalf of the American Bar Association, which also discusses
the Constitutional issues relating to this legislation, is
extremely good reading, and I commend it to the Committee.
Section IV of H.R. 4654 would prohibit specific forms of
cooperation with the Court until the United States ratifies the
ICC Treaty. The President already has that authority, but we
anticipate there will be instances in which it will be the
national interest to respond to requests for cooperation even
if the United States is not a party to the ICC Treaty. We may
decide that an international investigation and prosecution of a
Pol Pot or Saddam Hussein and Idi Amin, a Foday Sankoh or some
other rogue leader who has committed or is committing heinous
crimes that no civilized government or people could possibly
condone or acquiesce in would be in the national interest of
the United States to support.
In the ICC negotiations the U.S. Government has pressed
other governments hard to accommodate our need to protect U.S.
personnel from being surrendered to the ICC to stand trial
while the United States is not a party to the Treaty. I must be
able to offer in exchange for the protection that we are
seeking the ultimate cooperation of the United States with the
ICC when it serves our national interests while our country is
a nonparty to the ICC Treaty.
Section V can severely impede national interests and
needlessly hold them hostage to the ICC Treaty. Under the
Constitution the President already has the authority to do all
that is required in Section V of the bill but Section V ignores
the President's responsibility to national security
considerations in deciding when and how to deploy U.S. military
personnel under a wide and often unpredictable range of
contingencies. The bill ties the President's hands in a way
that can severely undermine this nation's ability and will to
protect our national interests.
Section VI is unnecessary. As we have already ensured in
articles 72 and 73 of the ICC Treaty that we will have complete
control as a nonparty or as a party to the ICC Treaty over the
transfer of classified national security information to the
Under Section VII of H.R. 4654 U.S. military assistance
globally would be held hostage to the ICC Treaty regardless of
U.S. national interests, regardless of whether our
servicemembers are protected through some means other than an
article 98 agreement and regardless of what circumstances will
arise in the future. This provision can only undermine our
national interests. The President already has this authority if
he chooses to use it to advance national security objectives.
The legislation requires the use of that authority in a way
that is most likely to undermine relevant national policies.
Section VIII would authorize the President to use all means
necessary and appropriate to free U.S. personnel being detained
or imprisoned by or on behalf of the ICC. We would note that
the ICC will be located in The Hague, the Netherlands, so in a
curious way Section VIII contemplates an armed attack on the
Netherlands, a close NATO ally of the United States. It is, to
put it bluntly, an alarmist provision that only complicates our
ability to negotiate our common objective of protection from
Under the Constitution the President already has the
authority to protect U.S. personnel wherever they are located
in the world.
Section IX of the H.R. 4654 requires a report evaluating
the degree to which each existing status of forces agreement or
other similar international agreement protects U.S. personnel
from extradition to the ICC under article 98 of the ICC Treaty.
Although we could provide such an assessment, the major issue
lies in reopening SOFAS to negotiation in order to seek full
protection from extradition through a SOFA provision.
Section IX requires the President to transmit to Congress a
plan for amending existing SOFAs or negotiating new
international agreements in order to achieve the maximum
protection available under article 98. Reopening SOFAs could
encourage host countries to insist on renegotiating other
Section X requires a report with respect to military
alliances to which the United States is a party. This provision
needlessly subjects our alliance command arrangements to
factors pertaining to the ICC Treaty and thus suggests that
once again our national security interests will be held hostage
to the ICC Treaty.
In conclusion, many of the provisions of H.R. 4654 achieve
exactly the opposite of the result intended and would seriously
harm our own national security and foreign policy interests.
The legislation would cripple our negotiating leverage to
achieve the common objective of protection of American
servicemembers from surrender to the ICC. Section V could make
it impossible for the United States to engage in critical
multinational operations. Section VII could weaken essential
The bill raises fundamental Constitutional issues and would
seriously impair any future Administration's ability to pursue
national security objectives.
As a negotiator who has faithfully worked and will continue
to work to protect U.S. national interests and U.S.
servicemembers in the ICC Treaty regime, I respectfully ask you
to withdraw this legislation so that I have a fighting chance
to achieve additional protections for U.S. servicemembers.
Thank you, Mr. Chairman and Congressman Smith.
[The prepared statement of Ambassador Scheffer appears in
Mr. Bereuter. Thank you, Ambassador Scheffer. Do you have
any kind of statement or remarks that you would like to offer
at this point? If not, the Under Secretary is recognized.
STATEMENT OF THE HONORABLE WALTER SLOCOMBE, UNDER SECRETARY OF
DEFENSE FOR POLICY, U.S. DEPARTMENT OF DEFENSE
Mr. Slocombe. Thank you, Mr. Chairman.
First of all, I associate myself with and the Department of
Defense with the detailed points made by Ambassador Scheffer in
Let me say a few words, first of all, about why the
Department of Defense and the Administration are opposed to the
United States being a party to the Rome Statute, and, indeed,
opposed to particular provisions of the Rome Statute, the
issues which Congressman Smith addressed in his statement, in
And then I will explain why, in spite of that position, we
are concerned about this bill and oppose it in its present
The Department of Defense is committed to the vigorous
prosecution of violations of human rights law and of the Law of
War. We have, indeed, prosecuted American Servicemen where
there have been credible allegations of such violations on
We have supported the international criminal tribunals for
Rwanda and for Yugoslavia, and we regard the establishment of a
body of international law relating to crimes against humanity,
genocide and so on, as valuable and important. Indeed, we place
a high priority in conducting our own military operations on
compliance with the relevant provisions of the Law of War. I
commend to the Committee's attention the very important opinion
issued by the Prosecutor for the ICTY, rejecting all of the
allegations against NATO activity in Kosovo.
So it is not a question of fidelity to international law or
recognizing its importance. Indeed, the United States
supported--would have supported--the establishment of an
appropriate international criminal court. However, we have a
fundamental problem with the treaty as it emerged from the Rome
meetings, because of its inadequate jurisdictional safeguards,
particularly as applied to nationals of states that have not
ratified the treaty.
As it currently stands, the Rome Treaty could expose
servicemembers and government officials of non-party states to
criminal liability. This possibility is particularly serious in
the case of the United States, because we believe there is a
real potential for groundless, politically motivated charges to
be brought by other states that object to the international
policies of any non-party states, but specifically the United
That exposure would inhibit responsible international
military efforts in support of humanitarian and peacekeeping
However, the fact is that this treaty is likely to come
into effect when 60 states ratify it. For that reason we attach
very high importance to making an attempt, which is now in
progress, to ensure that nationals of non-party states acting
pursuant to official instructions, acting on behalf of their
countries, cannot be prosecuted.
If those efforts fail, we will have to take a hard look at
our overall approach to the Court. A negative result could have
a major impact on our decisions about whether to participate in
certain types of military contingencies.
We would be facing the significant risk that the United
States would be unable to support the ICC or recognize its
legitimacy, particularly over personnel engaged in military
So just as there is, I think, no question that the
Department of Defense recognizes international law and the
requirements that that imposes on our operations, there is no
question that the Administration, very largely for the reasons
that Congressman Smith has identified, regards the treaty in
its present form as unsatisfactory.
All that said, the Department of Defense joins in the
opposition to this bill for two basic reasons.
First, and perhaps of the greatest immediate importance,
Ambassador Scheffer, leading an interagency delegation, is now
engaged in very difficult negotiations to secure protection for
U.S. military personnel in the situation which is going to
exist anyway, that is, that the treaty comes into effect with
the United States as a non-party.
We believe that the legislation will interfere with those
efforts to fix the problem.
Second, there are serious objections to details in the
legislation which have been broadly outlined by Ambassador
Scheffer, quite apart from its immediate impact on the on-going
The bill does not give the President any power he doesn't
It seriously limits U.S. flexibility, for example, by
cutting off aid to a large number of countries in the world
with whom we have, for very good reasons, with the support of
the Congress, substantial military-to-military links.
It would complicate the already sufficiently complicated
problem of keeping our Status of Forces Agreements [SOFAs] in a
form which will protect American military personnel overseas
from a whole set of other problems.
It would block U.S. cooperation, even in cases of
prosecutions which we strongly supported, and in a sense, it is
This issue--of the ICC--is an important one, but it is not
the only concern we have, and by imposing a set of rigid rules,
we'd make it far more difficult, I believe, both to carry out
our objectives with respect to the Rome Statute, but also with
respect to carrying out our national security policies in the
I thank the Committee for your attention, and I look
forward to answering questions.
Mr. Bereuter. Thank you very much, Secretary Slocombe. The
House has a series of two votes that occur in 15 minutes, which
is only 5 minutes away, and then a 5-minute vote, so we will
recess the Committee until approximately 10:50 a.m.
Thank you very much.
Mr. Bereuter [presiding]. The Committee will be in order.
We'll now proceed under the 5-minute rules for the questioning
of our witnesses.
Ambassador Scheffer, could you clarify for me and for the
Committee, the policy of the Administration regarding the Rome
Treaty and the creation of the ICC?
Are you trying, in effect, to fix the Rome Statute so that
eventually the United States can sign it, can ratify the treaty
to create the ICC? Or, are you trying to fix it so that our
nation can remain a permanent non-party to the treaty without
fear that our servicemembers and other government officials
will become targets for prosecution by the ICC?
Ambassador Scheffer. Thank you, Mr. Chairman. It's actually
neither, but it's mostly the latter that you have just
In other words, we are not in a posture at this point of
trying to, shall we say, fix the treaty in contemplation of
signing and ratifying it; rather, we are seeking to fix what I
very accurately describe as the treaty regime, because it
simply is not plausible at this stage to consider actually
amending the text of the treaty.
The first opportunity to amend the text of the treaty only
arises 7 years after the treaty enters into force with 60
So in our own interest, that's not exactly where we should
be directing our energies at this point; but, rather, we are
looking at the supplemental documents that are associated with
this treaty to determine how we might best protect our most
important interests in those documents.
And, of course, our most important fundamental interest is
the protection of U.S. personnel from surrender to this Court
while we are a non-party. That is our objective.
It is not tied to any plan for signature, and certainly
none for ratification.
The only reason I said it's not quite the latter point that
you described is that you said for our permanent non-party
status under the treaty.
I don't want to prejudge that for future Administrations
whatsoever. All we want to do at this time is to get this
squared away so that the United States can be comfortable with
this treaty and be able to facilitate its objectives when it is
in our national interest to do so.
Mr. Bereuter. So, Ambassador, you're saying that the word
that I used, ``permanent,'' makes it not an accurate
description. So, in fact, you're trying to assure that as a
non-party to the treaty, our personnel, military and otherwise
will not be subject to prosecution in the ICC? Is that correct?
Ambassador Scheffer. Precisely.
Mr. Bereuter. And if, in fact, there are no opportunities
to amend the treaty until approximately 7 years, I think you
Ambassador Scheffer. Yes.
Mr. Bereuter. And at that time, it would only be members of
the ICC, those that have signed the treaty, ratified it, that
would have an opportunity to amend it?
Ambassador Scheffer. That's correct.
Mr. Bereuter. In fact, as a non-party, we would not be part
of those discussions for amendment?
Ambassador Scheffer. Yes.
Mr. Bereuter. Ambassador Scheffer, could you explain to me,
how people came together to draft the Rome Statute? I want to
understand the legitimacy of the people that gathered to make
decisions like that.
Ambassador Scheffer. It began in 1989 with a proposal by
Trinidad and Tobago to create a permanent court for drug
trafficking prosecutions. But it grew from that in the
International Law Commission of the United Nations to focus
instead on a permanent court that would prosecute genocide, war
crimes, and crimes against humanity.
And in the early 1990's, up through 1994, the International
Law Commission prepared a draft statute for such a permanent
court. That was then sent to the General Assembly of the United
Nations, and the General Assembly decided in late 1994 to
create a committee of the whole body of the United Nations to
examine the statute prepared by the International Law
Those meetings began in early 1995, and they continued
through to the Rome Conference of July 1998.
Mr. Bereuter. And who were participants in that?
Ambassador Scheffer. The participants were representatives
of, I would say, a majority of the governments which are member
states of the United Nations. Each session saw a few more
governments, you know, participate from the earlier sessions.
But it has always been one of the frustrations that we had
as a U.S. delegation, that the membership of so many
delegations of governments consisted primarily of lawyers,
sometime academic lawyers, even though we're both lawyers.
But the point is that they were not necessarily there with
the full corpus of the political context of their own -- of the
entire process in mind. It became very much at times a
technician's exercise. And we tried to keep bringing people
back to the reality that this Court must balance the
requirements of international peace and security -- and many of
us have those responsibilities--with our common interest in
preserving international justice.
And in the process, we won a lot of our debates. We won a
lot of our points in this treaty, but on some of them, we did
Mr. Bereuter. Mr. Smith, I'm going to extend myself another
minute or two, and then we'll be generous with you as well.
Ambassador, the term ``statute'' confuses me, because as I
understand what happened there, this is not consistent with the
way we use the term in the Congress or in making legislation or
crafting within the United States.
Why the term ``statute'' when we are, in fact, proposing a
Ambassador Scheffer. Let me explain the difference, if I
may, Mr. Chairman. When one speaks of creating a court on an
international level, it has to have some governing document for
the functioning of that court. And as with the Yugoslav
Tribunal and the Rwanda Tribunal, the Security Council adopted
statutes or a statute for each tribunal, which is its
constitution, basically, the court's own constitution, the
basic principles by which the court must function.
It is simply a term of art that has arisen in the
international sphere, and during the talks for the ICC, it is
that basic constitutional document of the court itself which is
described as the statute.
The treaty itself, when ratified, embodies that statute,
and I guess the best I can say is that it's simply, in U.N.
practice, once you have ratified the treaty, per se, you are
also, of course, adopting as part of that ratification package,
the statute of the court itself.
Mr. Bereuter. Thank you very much. I have further
questions, but we'll turn now to Mr. Smith under the 5-minute
rule, and I will extend it to seven.
Mr. Smith. Thank you very much. Ambassador Scheffer, let me
just ask you a question with regard to the delegations.
It's my understanding that many of the delegations really
were represented by NGO's. I wonder if you could provide us
with a roster of who the participants were? You know, who was
in the room, who was actually leading the effort for the
language that ultimately resulted? I think it would be very,
very enlightening to get that.
Ambassador Scheffer. I can do that, Mr. Congressman. In
fact, it's very easy, because at each session, the United
Nations compiled the official list, so we can provide you with
Mr. Smith. I ask that that be part of the record. I think
that would be important.
Mr. Bereuter. Without objection.
[The information requested was not provided.]
Mr. Smith. Let me ask you, Mr. Ambassador, your view as to
why Israel was unable to sign the Rome Statute? It struck many
of us as strange that a nation whose people have had such a
direct experience with genocide would feel compelled to stay
outside an institution that is ostensibly designed to punish
and prevent genocide and other war crimes?
Ambassador Scheffer. Sir, some of the reasons--and I don't
want to speak for the government of Israel, but since I worked
closely with their delegation, I think they will have
confidence in my saying this, that certainly some of their
objections were related to the very same reasons that we had,
particularly the exposure of non-party nationals, because they
may find themselves in that position as well, so they have that
But they also had a very dominant concern that was not
necessarily relevant to the United States and the territory of
the United States, but since we have a very close relationship
with Israel, of course it's relevant to us. And that is the
particular war crimes set forth in article VIII-2(b)(8), which
refers to the transfer of civilian population into an occupied
The manner in which that crime was agreed upon in Rome was
contrary to what we wanted. We felt it was an overreach of
existing international law. It consumed an enormous amount of
debate and time in the negotiations, and Israel clearly could
not accept the way it came out.
We always had a standing principle in our negotiations on
the crimes, which is the crime must reflect existing customary
international law, and there must be nothing that contradicts
So we knew that we had a very tough road ahead of us after
Rome in the document called The Elements of Crimes. This is
where each crime is further fleshed out in terms of its
definitions and how a persecutor would prosecute the crime or
defense counsel would defend against it.
Over almost a year of intensive discussion, we finally were
able to draft the Elements of Crimes for that particular crime
in a way that was satisfactory to the Government of Israel, and
also achieved consensus with other governments. Everything we
do has to achieve consensus in these deliberations.
At the end of that, we were able in the Elements of Crimes
to accommodate the concerns of Israel, to have a footnote
inserted in the Elements of Crimes that would make it clear
that international humanitarian law has to be the guiding
principle for the application of that particular crime, meaning
existing international humanitarian law.
Israel was prepared to say we'll interpret it the way we
believe it should be interpreted, and we'll fight it on that
ground. After we achieved that fix in the Elements of Crimes,
Israel expressed its appreciation to us, and Israel joined in
the consensus on the Elements of Crimes, including that
Mr. Smith. Just going back, if you could provide the
Committee with a list of each area where we had a disagreement,
I think it would be very helpful.
But did we, pursuant to consensus, finally accede to the
Elements of Crimes and all the other provisions that are in
Ambassador Scheffer. Yes, we joined consensus on the
Elements of Crimes and on the Rules of Procedure and Evidence.
That was on June 30, last month.
Mr. Smith. So the only remaining area of difference is
Ambassador Scheffer. Well, we still have a difficulty with
the underlying statute of the Court, which is this issue of the
possibility that nationals of non-party states----
Mr. Smith. If I could interrupt, I thought that was a
concern. But have we agreed to everything in the body of the
Rome Statute by way of consensus--or haven't we?
Ambassador Scheffer. No. We did not join consensus in Rome
on the statute itself.
Mr. Smith. We were unable to block it, so consensus really
Ambassador Scheffer. No. Just to clarify, everything we've
been doing in the Preparatory Commission after Rome has been by
consensus. At Rome, we called for a vote to state our objection
to the actual stature.
Mr. Smith. Secretary Slocombe, I noted that the Ambassador
criticized Section VIII of the American Servicemembers
Protection Act, which authorizes the President to use whatever
means are necessary to free any American servicemembers who are
held captive by or on behalf of the Court.
The testimony, as he presented it, said that this provision
implicitly threatens the Netherlands where the ICC will be
headquartered, with an armed attack by the United States. The
testimony then goes on to assert that the President already has
all the authority he needs to protect American servicemembers
anywhere in the world.
The juxtaposition of these two assertions leads me to ask
what the policy of the Administration is if an American
servicemember were imprisoned by the ICC in the Netherlands or
elsewhere? If all other diplomatic efforts to bring about the
release of that servicemember failed, would the Administration
be prepared to use force to free him, or would it let him
remain a prisoner of an international tribunal whose legitimacy
we have rejected?
Mr. Slocombe. Certainly making sure that American service
personnel who are being improperly held are freed, would be a
very high priority. What the mechanics of doing it are, and
what would be workable and in our interest in any particular
circumstance would have to be decided at the time.
Mr. Smith. What do you believe, hypothetically, would be
ruled in, and would be ruled out? One of the reasons why this
legislation is proposed is to give clear notice as to U.S.
Mr. Slocombe. I think there is no question that the
President would have the authority to do what he thought was
appropriate, so the legislation doesn't add to the authority.
And, to be fair, the legislation doesn't say to go bomb The
Hague at the first time you have a dispute about it. I think
it's an example of the legislation, which is basically, I
agree, well-intentioned and, indeed, supports something the
Administration agrees with.
It just goes overboard, and, in fact, doesn't add any power
that don't already exist.
Mr. Bereuter. The time of the gentleman has expired. I was
going to recognize Mr. Berman, but I wonder if the gentleman
would have an opportunity to take the chair so that I could go
participate on the debate on the Vietnam waiver. Thank you.
The Chair recognizes the gentleman from California for 7
Mr. Berman. Gentlemen, it is good to have you here and I
apologize for missing your testimony.
There are a couple of things I want to pursue. The United
States has decided it does not want to sign and submit to the
Administration, to sign and submit for ratification the loan
statute. Is that----
Ambassador Scheffer. There is no plan to do either.
Mr. Berman. Right. At the same time the legislation
prohibits you from what kinds of activities dealing with this
International Criminal Court and the statute?
Ambassador Scheffer. It would shut down, if this
legislation were adopted, it would shut down any ability of any
governmental unit of the United States at the Federal, state or
local level, to respond to any request for cooperation or even
to allow any investigator of the Court to enter U.S. territory
for any purpose that is before the Court.
Now, the difficulty with that proposition is that it could
well be the case, 10, 20, 25, 30 years from now, that the Court
which will come into existence would have before it a rather
odious individual from somewhere else in the world that truly
should stand before a court of law and be prosecuted for
genocide, crimes against humanity, or war crimes. This
legislation prevents us from even voluntarily cooperating with
the Court to ensure the prosecution of that individual.
Unfortunately, it sort of has the flip side potential of
being a War Criminal Protection Act, because, in a sense, it
would deprive the Court of evidence or other information that
we might be very willing to provide in order to actually
prosecute the individual. It also would set up the United
States in a rather curious way as a potential safe haven for
these individuals, who know that if they arrived in the United
States, there would be no cooperation with the ICC.
Mr. Berman. Although just on that point, do our courts have
jurisdiction and do we have the ability to prosecute under U.S.
laws people who engage in international criminal conduct?
Ambassador Scheffer. Congressman, in some cases we do and
in others we don't. You know, we are quite familiar with what
the limitations of our own Federal law are at this time, and I
think one of the challenges that we have before us in the
coming years is to take a good hard look at the Federal law and
at the Code of Military Justice and determine, are we fully
capable of prosecuting individuals on our soil with respect to
I think in some cases you will find we are. In others,
there are statutes of limitations that make it very difficult
if suddenly the individual arrives 5 years after the commission
of the crime. So we do have a lot of work ahead of us to ensure
that we are capable of prosecuting these individuals in the
Mr. Berman. Yesterday I caught just a brief part of the
hearing Secretary Eagleburger and former Assistant Secretary
Bolton testified at. And I asked them--I raised the issue,
forget 25 or 30 years from now, let's assume 60 countries sign
and ratify this--how many have already signed it?
Ambassador Scheffer. Ninety-seven have signed it, 15 have
Mr. Berman. And 60 is the----
Ambassador Scheffer. Is the benchmark.
Mr. Berman. And you stated it as it if were as much of a
certainty as one can state in this world that 60 will ratify
Ambassador Scheffer. I think it is the only responsible
presumption for our government to have, that it will, in fact,
reach 60 ratifications. To assume otherwise would be extremely
dangerous, I think.
Mr. Berman. Well, I raised one of the--it was they
apprehended, under some set of circumstances, and decided to
prosecute Milosevic for criminal conduct under the Rome
Statute. And there was information held by the United States or
one of its agencies, or witnesses that were here, and
notwithstanding our desire not to participate in the Court, we
thought that this served general world interests and U.S.
interests to help provide evidence to the prosecutor of this
And they, Mr. Bolton, in particular, acknowledged that this
would prohibit that kind of cooperation, but he thought that
was good because this Administration in particular would
undoubtedly provide classified information to that Court which
would reveal sources and methods to the detriment of people who
had befriended us and provided certain information to us, and
that we had to have this statute to protect our country from
I am just curious about your reaction to that line.
Ambassador Scheffer. Well, we share neither Mr. Bolton's
vision of this Administration, nor his vision of the future. As
for this Administration, I think we have established a very
firm record with respect to our relationship with the Yugoslav
War Crimes Tribunal and the Rwanda War Crimes Tribunal on the
provision of information to those tribunals. We have a very
rigorous procedure, it is one that is dominated by interagency
checks and balances and I can assure you, being in the trenches
of it, that I can state with great confidence that we are doing
our job extremely well with those two tribunals on this issue.
As for the future, it is somewhat astonishing to conclude
at this juncture that under any circumstances whatsoever in the
future, we might not view it in our national interest to
facilitate such a prosecution. I will remind the Committee that
articles 72 and 73 of the ICC Treaty, which we negotiated very
intensely in Rome, and we prevailed on, give us complete
authority over what information is provided of a national
security character to the ICC. We have complete discretion.
Mr. Berman. May I ask one more question, Mr. Chairman? I do
see my time is up.
I think in response to the gentleman from New Jersey's
question, you spoke about the situation with Israel. I take it
you construe this bill to prohibit you from participating in
those kinds of negotiations in the future?
Ambassador Scheffer. I'm sorry, Congressman.
Mr. Berman. With respect to the definition of one of the
crimes dealing with transfer of populations Mr. Smith asked you
asked, you told the story of sort of the U.S. role in changing
the term of reference and getting a footnote, and, as a result
of that, Israel withdrew its concerns with that language. My
question is, do you view this bill as prohibiting you in the
future from doing that kind of activity that you did there?
Ambassador Scheffer. Thank you very much. I am sorry I
didn't catch on. First of all, those negotiations on that
particular crime have now come to a close, and we
satisfactorily resolved the issue with that crime.
Mr. Berman. Right.
Ambassador Scheffer. But with respect to this bill, I must
say that I think the very last government in the world that
would want this bill adopted would be the State of Israel. Why?
Because they look to us in these negotiations to pursue the
objectives of this government, which are clearly of great
interest and importance to the government of Israel as well.
And therefore, if this bill were to be adopted, and there were
no capability whatsoever to cooperate with the Court once it is
established, we would have no influence with the Court on any
matter that might pertain to the State of Israel. Why not have
I cannot conceive of the State of Israel wanting to support
this bill, it would be totally counter-intuitive to their
interest to do so.
Mr. Berman. Well, but the negotiations you described, as
you pointed out, are already concluded. So maybe it was good
that this was not the law then.
Ambassador Scheffer. Exactly.
Mr. Berman. But what about now? What more negotiations are
Ambassador Scheffer. Exactly. I mean if this bill----
Mr. Berman. Are there any more negotiations?
Ambassador Scheffer. There are more negotiations in the
Preparatory Commission ahead of us, very important ones.
Mr. Berman. On what kinds of issues?
Ambassador Scheffer. On the relationship between the Court
and the United Nations, on the financing of the Court, on the
rules for the assembly of states parties, once the Court is
established, and how the states parties interact with each
other, on the privileges and immunities for Court staff, and on
Mr. Berman. What about the role of forces and peacekeeping
operations, is that part of negotiation?
Ambassador Scheffer. Well, nothing is ruled out for future
discussion in the Preparatory Commission. And the Preparatory
Commission will continue until the treaty actually enters into
force. So there is a period of time here where it is going to
continue to operate and there are going to continue to be
meetings. In fact, there will be many issues of direct concern
to the United States where we should be there discussing those
issues, particularly the financing of the Court.
The problem with this legislation is that if it were to be
adopted at this time, it sends an extremely destructive message
to other governments. Why should they listen to the United
States in this negotiating realm? Shut it down is what they
would do. It would be totally counterproductive.
Mr. Berman. All right. So it isn't that the bill would
prohibit you from participating in those discussions, it is
that once you have indicated that in no fashion will you ever
cooperate with anything they do, no matter it is, and by law
you are precluded from cooperating, they are not going to give
you the time of day?
Ambassador Scheffer. That's right. As I read the bill, and
maybe I am misreading it, but I don't think this bill, on its
face, precludes us from participating in further Preparatory
Commission meetings prior to establishment of the Court, but it
establishes such a burden on our shoulders going into those
negotiations, that in no circumstances do I foresee this bill
enabling, or facilitating, or strengthening our ability as
negotiators on a whole range of technical issues where we
actually have very important interests at stake.
Mr. Berman. Thank you, Mr. Chairman.
Mr. Smith [presiding]. Thank you very much, Mr. Berman.
Let me ask a few questions and then I will yield to my
friend, Mr. Berman, if he has any further questions.
You mentioned checks and balances that exist within the
Yugoslavian War Crimes Tribunal. Do those same checks and
balances also exist in the Rome Statute?
Ambassador Scheffer. Congressman, there are many more
checks and balances in the ICC statute, and I can go into some
of those. But the power of the prosecutor is much more
qualified within the ICC statute. The principle of
complementarity, which is nowhere found in the Yugoslav or
Rwanda Tribunal statutes is a central feature of this
And, furthermore, this Court, the ICC, depends upon the
states parties to the Court to actually make very important
decisions relating to the Court, whereas, the Yugoslav and
Rwanda Tribunals look to no governments whatsoever for their
Mr. Smith. Let me ask you what kind of checks and balances
there are. In terms of elected officials, our Founding Fathers,
I think, were right in vesting only limited power in each of
the three branches, being so distrustful, as they were, of any
single entity being given so much power. Power corrupts, and
absolute power corrupts absolutely.
What happens if a prosecutor and/or judges were to run amok
and to engage in an ideological crusade against certain
individuals? I think we already have a shot across the bow when
lawyers brought action against NATO for alleged war crimes,
that our planes were flying too high, putting additional
civilians at risk, the choice of targets, which they seem to
disagree with. A war crime then potentially could be in the eye
of the beholder. Because, again, I do think there is some true
elasticity to these terms.
Yes, Mrs. Del Ponte did not accept and did not proceed on
those charges, but some other prosecutor may not be so
favorably inclined. You might want to comment on that. Looking
back, if the Rome Statute were in effect during World War II,
for example, and we dropped the bomb on Hiroshima and Nagasaki,
and we did the firebombing of Dresden and the other German
cities with a huge number of civilian casualties, would that be
construed as a war crime under the plain meaning of the Rome
Ambassador Scheffer. Well, Congressman, it is far too
speculative to try to get into that. Remember that during World
War II, the question is, were those actions violations of
codified or customary international law at that time?
Mr. Smith. That is not the question I am asking.
Ambassador Scheffer. No, I know.
Mr. Smith. Fast-forward those military actions that this
country undertook with our Alliance.
Ambassador Scheffer. It is entirely speculative to say we
would use exactly the same military tactics today as we did
during World War II. I would not speculate in that direction,
not at all. We are far more precise----
Mr. Smith. But there is no doubt a reasonable man or woman
could use the Rome Statute in cases analogous to matters of
historical fact, where military decisions were made which
resulted in huge casualties. Thankfully, at least, the
consequence of Hiroshima and Nagasaki was the ending of the
war. But there is an argument that has been made ever since as
to the advisability of those actions.
I think it is a fair question. Past is prologue. We may be
faced with this in the future. We all know that NATO, in terms
of its war doctrine, would rely on superiority, at least during
the Soviet days, rather than quantity. Quality was what we
would rely on. There is the potential that a United States
President, or a French President, or a British Prime Minister
may have to make a decision some day to use nuclear weapons. It
is not beyond the realm of possibility and it is not highly
speculative. Those things have to be thought through.
Since we have the historical record, I think it needs to be
plugged in to see whether or not this would have triggered a
war crimes prosecution.
Ambassador Scheffer. Well, we were careful in the drafting
of the statute, as well as the elements of crimes, to establish
very high barriers to actually launching investigations and
prosecuting the crimes. Not isolated incidents, there has to be
systematic widespread events. There have to be plans and
policies to directly assault civilian populations. If military
necessity dominates the reasoning behind the use of any
particular military force, then that is in conformity with
international law and it is in conformity with the statute.
But if you are asking me, speculate as to whether or not it
can conceivably be drawn that the United States takes a
particular type of military action without describing what the
intent was behind it, the plan or the policy behind it, I can't
answer questions like that because you have to go through every
step of the analysis before you can answer whether or not this
statute would actually apply to that particular use of military
Mr. Smith. Well, one of the more perverse outcomes would be
that our military strategists would be faced with factoring in
not just what is in the best interests of the United States and
our allies, and how are we more likely to achieve a military
end to a conflict. They would also have to factor in whether or
not such an action would violate the Rome Statute.
Let me also say, our nuclear doctrine rests on deterrence,
and if the Russians were to attack us or to launch, we would
destroy Russian cities. How would that fit into a Rome Statute
Ambassador Scheffer. Congressman, this statute, as I said,
specifically provides very high barriers that have to be met.
Mr. Smith. But crimes of aggression aren't even defined
Ambassador Scheffer. And it is contrary to U.S. Federal law
as well as the Uniform Code of Military Justice to violate the
laws of war. So I would assume the plan or policy of the United
States would not be to violate the laws of war. If it were the
plan or policy to violate the laws of war, then we have a lot
to answer for. But if it is not the policy to violate the laws
of war, there should be symmetry between our actions and what
has been set forth in the statute, which we agree with.
We agree that the crimes set forth in the statute are
crimes under customary international law which we must adhere
to. We are not disagreeing with what is in the statute in terms
of the list of crimes, we agree with them. They must be
Mr. Smith. And again, signing a document that still has not
defined crimes of aggression----
Ambassador Scheffer. And by the way, I noticed that in your
opening statement. I did want to get back to you on that. The
whole process in the Preparatory Commission now is to try to
determine, can there be a definition for aggression? The crime
of aggression is not actionable under the statute unless there
has been an agreement among the states parties to the statute
at the 7-year review conference as to what is the definition of
that crime. So you can't--there is no way to prosecute that
crime until such a definition has been arrived at. And we have
a very significant coalition of governments in total agreement
with us as to how to proceed in those talks to define the crime
Interestingly enough, under the statute, if one is a state
party to the statute, you have every right, if a new crime is
added to the statute, to completely exclude yourself from the
coverage of that crime.
Mr. Smith. Mr. Slocombe, Secretary Slocombe, if you could
respond to the hypothetical posed earlier about not just our
deterrence strategy, which is based on the obliteration of
cities, unless something has changed there that I don't know
about, but also the bombing of Hiroshima, Nagasaki, and the
firebombing that took place in Germany. If the Rome Statute
were in effect, would that have precluded those actions?
Mr. Slocombe. Mr. Smith, I think the way I would answer
that would be to say that, in our view, if the Rome Statute
were properly applied, American military personnel or the
political officers, the President and, I guess in those cases,
the Secretary of War, the Secretary of the Navy who ordered
operations could not properly be prosecuted under them because
they were legitimate. In the case of Hiroshima and Nagasaki,
and, indeed, in general, with respect to the strategic bombing
campaign against both Japan and Germany with conventional
weapons, I would maintain that, judged by the context in which
they occurred, they were not violations of the law of war under
So that, as a lawyer, the way I would answer the question
would be that the United States would have a good defense if
such cases were, in your case, hypothetically tried.
What I am concerned about, what the United States is
concerned about, is that there could be a politically motivated
prosecution based on what would, in our view, be a
misinterpretation of the law of war, and, therefore, a
misinterpretation of the Rome Statute. And once one is in a
court, once you concede the principle of jurisdiction, there
are no guarantees as to the result.
Mr. Smith. So it would be possible that a Hiroshima,
Nagasaki type action or the firebombing in Japan and in Germany
could be prosecuted in the future if such a thing were----
Mr. Slocombe. As we have said repeatedly, our concern in
respect of this statute, in respect of the Court, is precisely
the concern about politically motivated, in effect, bad faith
Mr. Smith. But what about a good faith prosecution, by
someone who honestly believed that Hiroshima was a war crime? I
mean it is possible that it could happen?
Mr. Slocombe. Well, there is no question that on its face,
the Court has jurisdiction over actual ``war crimes''. That is
what the statute says, that is what is intended. Our concern,
the United States military, through the United States military
justice system, prosecutes and prosecutes vigorously well-
founded allegations that American military personnel have
violated the law of war.
We do not need the International Criminal Court to deal
with that problem. So that is a non-problem. Our concern is not
that there would be valid prosecutions of American military
personnel. Our concern, rather, is, as I said, and as we had
said repeatedly, our concern is with politically motivated
prosecutions based not really on serious allegations of war
crimes, but on disagreement with U.S. or other alliance
policies, of which I think the rejected allegations with
respect to Kosovo are a good example.
Mr. Smith. Could I ask, and ask you to provide it for the
record, that the Pentagon undertake an analysis as to whether
or not Rome would apply to World War II actions like I
Ambassador Scheffer, I think if these other issues were
ironed out, you probably would like to see us sign this. But we
have got to know what we are heading toward, and we need to
look back before we look forward. Such an analysis, if it
hasn't been done, really should be done.
Mr. Slocombe. It has been done, that is the reason we
opposed the treaty.
Mr. Smith. What has been done, a look back at past
Mr. Slocombe. Well, I don't know that anyone did it in the
mind of saying Dresden could have been prosecuted, I think they
did it in the mind of saying you don't have to go back to World
War II or to the Vietnam War to say that there is a very real
danger that there could be politically motivated prosecutions
through the International Criminal Court, and that is precisely
the reason that not just the Department of Defense, but the
Administration voted against the text and have refused to sign
Mr. Smith. And Ambassador Scheffer, you agree with that,
there could be politically motivated prosecutions?
Ambassador Scheffer. Precisely.
Mr. Smith. I'm sorry?
Ambassador Scheffer. Yes. Yes.
Mr. Smith. Do you, Ambassador Scheffer, personally think
that President Clinton made a mistake when he decided against
signing the treaty in 1998?
Your mike is not on.
Ambassador Scheffer. I'm sorry, Congressman. My answer to
your other question was yes.
Mr. Smith. OK. Thank you.
Ambassador Scheffer. No, there was no mistake whatsoever.
In fact, the issue of signing was simply not the issue. In Rome
it was, do we agree with other governments to release the text
of the statute out of the Rome Conference in the form that
existed at the end of the conference? That was the only issue
It truly is a more responsible course to take not to
consider even the issue of signing until one sees the totality
of this treaty regime.
Mr. Slocombe. If I could, Mr. Chairman, could I read a
sentence from a letter which Secretary Cohen, with the
concurrence of his colleagues in the senior levels of the
Administration, sent in support of Ambassador Scheffer's
effort, which responds exactly to your point? It reads, ``As it
currently stands, the Rome Treaty could expose servicemembers
and Government officials of nonparty states to criminal
liability based on politically motivated charges brought by
other states that object to the nonparty states' international
policies.'' That is our position and that, in a sentence, is
the reason for our concerns.
Mr. Smith. Let me ask a final question or two. Ambassador
Scheffer, how likely do you really think it is that you will
succeed in your efforts to get the ICC to forego criminal
jurisdiction over Americans and persons from other countries
that are not a party to the Rome Statute? And what happens if
you fail? Obviously there are a different set of diplomats and
parliamentarians that I was meeting with, but at the Bucharest
Conference we were all alone in our opposition. I was amazed in
speaking one-on-one during the course of the week in Bucharest
at the OSCE Parliamentary Assembly at how Pollyanna-ish some of
the views were of members who did not have a clue what was
contained in the statute but just said ``We want an ICC and
that is it.'' The British were probably more emphatic than
anyone, although they seem to have been informed and knew the
contents of the statute. They were vigorously pushing for rapid
ratification, which is what the operative language was that
they were offering.
The Germans offered it. We tried to weaken it with an
amendment and it was not acceptable, regrettably. It seems as
if, as Mr. Bereuter pointed out earlier, in terms of a
willingness to just cede sovereignty, the Europeans have no
problem with that, it seems. But obviously we do.
What is the next step if they do not include us--or exclude
us, I should say--from jurisdiction? What would be the next
Ambassador Scheffer. Well, I think there will be some--let
me just describe it as serious results if we cannot prevail
with a provision or a document that is satisfactory to us in
the Preparatory Commission talks.
I think as Under Secretary Slocombe said earlier we are
going to have to take a very serious reassessment of this. I
think there is going to be a clearer assessment as to what we
can consider in terms of military contingencies for this
Government, but at the same time I would hope that that
assessment could, the fact that there would be such an
assessment would encourage a good number of governments,
particularly our allies, that they have far more to gain from
this process from the United States being a cooperative partner
in this Treaty, even as a nonparty, than they do to isolate us
by not taking into consideration the very specific requirements
that we have in the international community, so all I can say
is I hope I can succeed.
I don't want to pretend to say that I have got an easy job
ahead of me. Right now the deck is stacked against me, but we
have to try. This is a step-by-step process. We have had to
exercise some patience in getting there, but every time we have
pursued our objectives since Rome to actually accomplish what
we need to accomplish, we have accomplished it, so I want to go
that final mile and see if we can accomplish this objective.
Mr. Smith. Again, what is the likelihood of doing it? I
mean Secretary Bolton and----
Ambassador Scheffer. It could be 50-50 at this stage.
Mr. Smith. Secretary Bolton and Eagleburger, former
Secretary of State, have made it clear that they thought we
lost the fight 2 years ago.
Ambassador Scheffer. Well, as I said, we simply do not
share their vision of either having lost or waging this
campaign. I think you have to be in the trenches of it to
recognize that other governments truly do not want, at least
many other governments, truly do not want to see the United
States walk out of this process. They know how valuable we can
be in the long-run for this Court and therefore I would hope
that we could persuade them that a reasonable accommodation
within the Treaty regime of U.S. interests is going to be to
the betterment of the entire process and to the Court itself.
Mr. Smith. I would respectfully suggest that we did lose it
2 years ago. We are trying to fix it now, and I obviously wish
you success. We all would wish you success on that, but, you
know, you mentioned serious repercussions or serious
consequences. I think we are more likely to avoid that if we
are very specific in saying this or that happens.
Predictability I think is your friend now. Can you elaborate on
some of the consequences if we lose?
Ambassador Scheffer. Well, as we have already stated to our
colleagues in other governments in letters that the Secretary
of Defense has sent to his counterparts, we would have to re-
evaluate our ability to participate in military contingencies
if we cannot prevail on that, and I think that is a fairly
In addition to that, I think governments truly are having
to gauge what is the consequence if the United States cannot be
a good neighbor to this treaty. It will severely cripple the
operation of this Court if we cannot be a player in it.
Mr. Smith. How would it affect peacekeeping in your view,
and Mr. Slocombe, you might want to add your views on
peacemaking as well?
Ambassador Scheffer. I think it could have a very severe
impact on that. Walt?
Mr. Slocombe. What the Secretary of Defense said in his
letter was unfortunately a negative result--that is, a negative
result with respect to the article 98 effort--could have a
major impact on our decision whether to participate in certain
types of military contingencies.
That is what he said. I would not see that as an absolute
judgment that we will never send American troops overseas in
any situation, but it would have to be a factor we would have
to take into account.
Mr. Smith. Just getting back to the legislation, and I know
in its current form you have made it clear you don't support
it, but can you not at least admit there is some value in again
broadcasting to the world that we are very serious and that the
Congress is very serious about there being very negative
consequences if this thing proceeds and we are included, having
not been made a party to it, having not ceded or signed it?
Ambassador Scheffer. Well, I think there is some value to
it and the mere existence of the legislation I think has sent
that signal very loudly and clearly.
What I am saying is that actual adoption of this
legislation would then have the reverse effect on our ability
to actually negotiate our common objective.
Mr. Smith. Let me just take that one step further. I mean
the President obviously would have the capability of vetoing
the bill if he thought it was not the right vehicle.
But let me point out that the Congress also has
prerogatives, and we do fund peacekeeping. We obviously provide
the necessary and requisite moneys for our military. It seems
to me that we need to be very much a part of this because the
outcome could be a disaster going forward for the world and for
U.S. men and women in uniform who may be deployed overseas.
As I have read this, and I have read just about everything
I can get my hands on, I have grave concerns. I said at the
outset that no one has been more favorably inclined toward ad
hoc tribunals than I am. When we had the first hearings in the
Helsinki Commission on what became the Yugoslavian Tribunal we
were being told by its leader, the man that was charged by the
United Nations to take on the responsibility, that it was
designed to fail, that he had been given insufficient
resources, that it was nothing but fluff in order to placate
certain individuals in countries, but it really was not a
Now if we go in the other extreme and all of a sudden pass
or enact something that potentially could prosecute the
President or our Secretary of State or Defense or Supreme NATO
Allied Commander, I think we have erred significantly as well,
and I don't think there has been enough vetting of this issue.
I think a very small group of people have decided this. As
I mentioned earlier, you know, I really want to take a look at
who the actual participants were. We have heard that NGO's were
filling the seats and taking on the responsibility of
negotiating rather than the respective governments, who were
kind of like brushed aside and the designated hitters were
making decisions. That is serious if that indeed turns out to
be the case. So I think there has been far less scrutiny
brought to this, and hopefully these hearings are the beginning
of even more focus by the Congress, but I thank you for your
Mr. Tancredo is here. Do you have any comments?
Mr. Tancredo. No.
Mr. Smith. I do thank you for your comments. We look
forward to working with you in the future.
Ambassador Scheffer. Thank you, Mr. Chairman.
Mr. Slocombe. Thank you, Mr. Chairman.
[Whereupon, at 11:51 a.m., the Committee was adjourned.]
A P P E N D I X
July 25 and 26, 2000
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